^ 



"1 



I LIBRARY OF CONGRESS, % 

F\032. 



* *. 



LETTER 

• TO HER MAJESTY 

THE BRITISH QUEEN 



WITH LETTERS TO 



LORD DURHAM, LORD GLENELG AND SIR 
GEORGE ARTHUR: 



TO WHICH IS ADDJGD AN APPENDIX EMBRACING A 

REPORT OF THE TESTIMONY TAKEN ON THE 

TRIAL OF THE WRITER BY A COURT 

MARTIAL, AT TORONTO IN 

UPPER CANADA. 



7^ 



BY TH: JEFFERSON SUTHERLAND. 



ALBANY :(Vli. 



PRINTED BY C. VAN BENTHUYS 
184L 




R 



\o3^ 



.S<\t 



Entered according to act of Congress, in the year of our Lord 
one thousand eight hundred and forty-one, by Th: Jefferson 
Sutherland, in the Clerk's Office of the District Court of the 
Southern District of New-York. 



^0^^'''' 



ADVERTISEMENT. 



Or those who were implicated in the late revolutionary movemeiUa 
in the Canadas, the writer and publisher of this volume wast the first put 
upon trial, with the intention on the part of the British government that 
he should have been the first to be executed. Why he escaped will be 
understood after a perusal of these pages. 

There are now about 150 citizens of the United States, who were 
captured by the military forces of Great Britain in the Canadas during 
the late revolutionary movements, still held by that government as pri- 
sioners of state. They have been sent to Van Dieman's Land, one of the 
British penal colonies, where they have been reduced to the condition 
of common felons; and thrust into a convict station with thi«ves, robbers, 
burglars and others of the vilest of the overflowings of the prisons of the 
the British empire — without sufficient food or necessary clothing they are 
being compelled to labor for unreasonable hours at the most servile em- 
ployment ; and made subject to the lash and other severities, unusual to 
be inflicted by civilized people. Those men, having been induced to be- 
lieve that a hearty struggle was about to be made by the Canadians for 
liberty, with a generous motive, volunteered their services to aid them 
in their efforts; and so doing became prisoners. By the publication of 
this volume, it is hoped to bring the attention of our own government, 
as well as that of Great Britain, to the condition of those, our unfortunate 
fellow-citizens ; and that the British government may then be induced 
to set them at liberty. Should it prove one of the means of bringing 
about the desired result, the sole object of the publication will have been 
attained. 

Aside from the matters which bear upon the object expressed, this 
volume will be found to contain expositions of legal questions, which give 
it value, as a book of reference; particularly, on trials by Court Martial. 



DEDICATION. 

To the Attorneys and Counsellors at Law 
Of the United States of America, 

With the highest consideration. 

This work is respectfully dedicated. 

Gentlemen — In assuming to dedicate this volume of 
LETTERS to SO learned and patriotic a body as is consti- 
tuted by the members of the profession of the law in the 
United States, I have simply to offer as an apology the 
motive with which the publication is made. 

The letter to the British Queen has been written in 
behalf of the American citizens who are now detained as 
prisoners by the British government, charged with having 
participated in the late revolutionary movements in the 
Canadas. Some of these men, according to the most re- 
cent accounts, have been sent off in chains in a convict 
ship for Van Dieman's Land ; others have been placed in 
the hulks in England — and a few have been disposed of 
in the penitentiary at Kingston in Upper Canada. 

The other letters comprising this volume are copies of 
communications which were addressed by me, during my 
confinement in the citadel of Quebec, to the functionaries 
of Her Majesty's government. In them I have reviewed 
the circumstances of my own capture, trial and imprison- 
ment ; and I have endeavored to show that all the pro'^ 
ceedings of the British government towards me were, in 
the extreme, illegal and unjust. 

These papers, together, contain matters of justification 
for all the American citizens who have taken a part in the 

1* 



6 



DEDICATION. 



late struggles by the Canadians for independence ; and 
they are published with a view to furnish arguments in 
behalf of those Americans whose fortune it has been to 
become prisoners in the hands of the British government ; 
and who, (perhaps, merely for the want of ability to re- 
present their case,) have not yet, like myself, been able 
to obtain their liberation. 

I am informed by a gentleman residing in London, who 
is highly esteemed as a man of honor and probity — and 
who possesses some political reputation in England, that 
if I should lay before the public these letters which have 
been the instruments of my own release, they would be 
made to have much influence with the British govern- 
ment to procure the release of the American citizens who 
are still detained in prison — as my case was a very near 
parallel to theirs ; with the difference, that I was one of 
the principal and most active leaders — and subject to no 
othar influence than my own principles ; while they, who 
are now in prison, are young men, without influence — 
the sons of the farmers and mechanics of our frontier 
counties, who were persuaded by others to embark in the 
late military movements of the Canadian revolutionists. 

In the early struggle of our forefathers, the lawyers of 
our country were found front and foremost in the cause 
of political freedom. The charter of American liberty, 
the Declaration of Independence, was the work of Thomas 
Jefferson, a lawyer; and while John Adams, a lawyer, 
proclaimed liberty at the north, in deep and hallowed 
tones — Patrick Henry, a lawyer, reechoed the sacred 
principle at the south, with the cry of " Liberty or death!" 
Shall I not be safe, then, in supposing the lawyers, of the 
present day in our country, no less the advocates of politi- 
cal liberty — and as firm friends of the oppressed? and 



DEDICATION. 7 

having shown, (as I believe I have in this volume,) that 
the further detention of the American citizens now in the 
custody of the British government is no longer called for 
by a regard for the safety of that government, or the peace 
and quiet of the Canadas — and that the course being pur- 
sued by that government, towards those individuals, can- 
not be justified by the rules of civilization, or upon any 
other reasonable pretext — Gentlemen, I have ventured 
to hope that your actions will not be quieted, nor your 
voices stilled until our unfortunate countrymen shall be 
set at liberty and permitted again to return to their homes. 

TH: J. SUTHERLAND. 
New York, January 21, 1841. 



TO HER BRITTANIC MAJESTY 

VICTORIA I. 

Madam — By your Majesty, the reception of a commu- 
nication from an humble citizen of a foreign republic, may 
be held an extraordinary matter ; and perhaps, be regard- 
ed as strange in its course ; but the position in which I 
have lately been placed, in relation to your Majesty's 
government, by a course of circumstances peculiar to 
themselves, fully justify, as I believe, the liberty I am 
about to take of addressing your Majesty, as the chief 
executive of the British nation. 

Your Majesty will be informed that I am an ardent ad- 
mirer of democratic institutions and an enthusiastic advo- 
cate of political freedom ; and that believing as I did, that 
the people of the provinces of the Canadas %vere about to 
make a hearty struggle for liberty ; and entertaining the 
desire to obtain the small share of applause which might 
chance to accrue to one of the humble agents in the esta- 
blishment of another independent republic on the conti- 
nent of America, in the early part of the month of De- 
cember, 1S37, I joined myself, as a military officer, with 
the inhabitants forming a revolutionary party in the pro- 
vince of Upper Canada, who were then making an effort 
to subvert the authority of your Majesty's government in 
that province — to drive their masters, who were your Ma- 
jesty's agents, from the soil — and to establish a republican 
form of government in the stead of the colonial system 
maintained therein by your Majesty. That after I had 
been for some short time engaged in the revolutionary 
movements of Upper Canada, I withdrew from the cause 



10 LETTER TO THE BRITISH QtrEEN. - 

of the revolutionists, having become satisfied that nothing, 
at the time, could be moved in behalf of their undertaking 
with a promise of success — and doubting that any thing 
could be effected, with such means as we possessed, in a 
manner, as I deemed, honorable or creditable to myself 
as a commander ; and that after having so withdrawn 
from the cause of the Canadian revolutionists — and when 
I was in no manner connected with any of their move- 
ments, or affairs — and when I was peaceably pursuing. i^y 
own private business, within the United States^ at a dis- 
tance of not less than seven miles within our lines, I was 
come upon and kidnapped by an armed party of your Ma- 
jesty's officers and soldiers who had crossed our lines for 
the purpose of my capture ; and by them carried off into 
the province of Upper Canada ; and there, by an order of 
your Majesty's Lieutenant Governor, Sir F. B. Head, I 
was tried by a court martial, on a charge of having joined 
with and participated in the movements of the revolution- 
ists of that province — was threatened with immediate ex- 
ecution, tortured with suspense for a long time ; and then, 
had passed upon me a sentence " to be transported, as a 
felon, to one of your Majesty's islands for life " — when, 
by the laws of the British nation, upon the proceedings 
before the court martial, I was clearly entitled to an ac- 
quittal. That the members of the court martial, by whom 
I was tried, took their seats with predeterminations to 
find me guilty at all hazards ; which they did — and in 
violation of every principle of justice and of law, as it will 
appear from an examination of a letter addressed by 
me, during my imprisonment in the Canadas, to Lord 
Durham, then your Majesty's High Commissioner, &c., a 
copy of which is hereunto annexed, marked A ; and while 
I was debarred from all opportunity to comply with an 



LETTER TO THE BRITISH QUEEN. 1] 

extremely unjust demand, as it will appear from the ex- 
amination of a LETTER addressed by me to Sir George 
Arthur, your Majesty's Lieutenant Governor of Upper 
Canada, a copy of which is hereunto annexed, marked B 
— and that although it was plain to all those acquainted 
with British institutions, of the commonest understanding, 
that I was illegally detained, as it will appear from an 
examination of a letter addressed by me to Lord Glenelg, 
atopy of which is hereunto annexed, marked C, the offi- 
cers of your Majesty's government still kept me, under 
the severest condition of imprisonment, for more than a 
year. 

I do not, however, address your Majesty on this occa- 
sion, for the purpose of preferring any complaints for the 
treatment which I have, myself, received at the hands of 
your Majesty's government — and which I deem to have 
been unwarrantable. Such is not my purpose. 

But, I would suggest to your Majesty, that during those 
political commotions in Upper Canada, in which I have 
already set forth, that I was myself engaged, many indi- 
viduals, inhabitants of that province, (as also of the pro- 
vince of Lower Canada,) who had been variously honored 
>vith political preferments by the people of those pror 
vinces, came into the frontiers of the United States — and 
there publicly alleged various grievances against your 
Majesty's colonial government maintained in the provinces 
of the Canadas — and solicited aid and assistance from our 
people to enable them to redress their alleged grievances 
by the establishment of a government independent of your 
Majesty ; and that at that time, the cause of the Canadian 
revolutionists was espoused by a vast majority of the peo- 
ple of our whole frontier — and public meetings in their 
behalf were held throughout the states which border upon 



12 LETTEE TO THE BRITISH QUEEN. 

the Canadas — and were numerously attended. That at 
those meetings it was urged by the most honorable and 
most exalted people of our country, that to embark in 
those revolutionary movements — and to give person^ aid 
to the people of the Canadas, who were then struggling 
to establish an independent republican form of govern- 
ment, was both commendable and praiseworthy ; and a 
large number of American citizens, (as well as myself,) 
were soon found embarked in the revolutionary move- 
ments of the Canadas then being carried on — a portion 
of whom were persons without political influence, either 
in the United States or the Canadas — and were in no 
wise capacitated to hold in any military body of men any 
other rank or grade than that of common soldiers(l.) — yet 
many of this inferior class, (as well as some others,) who 
have been captured by your Majesty's military forces, are 
now still detained, by your Majesty's government, in the 
condition of imprisonment usually bestowed only upon the 
worst class of common felons. According to my informa- 
tion, there are now from sixty to an hundred American 
citizens, of the class I have mentioned, thus detained by 
your Majesty's government. They are principally from 
the sons of the farmers and mechanics of our frontier 
counties, who have been persuaded to embark in the af- 
fair by others. By individuals of our country to whom 
those men have been habituated to look up to for a decla- 
ration of what was just and proper in a public point of 
view, they were recommended and even urged, to join 
the standard of the Canadian revolutionists — and having 
done so, by the fortunes which have befallen them, they 

(1.) All those American citizens who became prisoners to the British go- 
vernment of a higher grade, have been executed, or they have escaped 
through the irregiSarity of the proceedings against them, or from the loop- 
holes of their prison 



LETTER TO THE BRITISH QUEEN. 13 

have become prisoners — and are now enduring the seve- 
rities of a dungeon, while their more responsible as well 
as more fortunate fellow citizens, by whom they were in- 
duced to embark in the undertaking which has placed 
them in their present condition, are now enjoying their 
wonted freedom and comforts of life ; and I would then 
submit to your Majesty, if the further detention of those 
American citizens who are now prisoners in the hands of 
your Majesty's government, charged with having been 
concerned in the late revolutionary movements of the Ca- 
nadas, be not in violation of that liberal policy which is 
provided by the modern rules of civilization — and if the 
continuance of those persons in the condition of common 
felons, as they are now placed, is not calculated to bring 
us back to the usages of the savage people of a darker 
age, by the establishment of a spirit of retaliation — and 
thereby laying the foundations for wholesale murder and 
an exterminating warfare, to be acted upon at some fu- 
ture day? 

Your Majesty wall understand that neither myself, 
those who are now prisoners, nor any others of the inha- 
bitants of the United States had any part in or connexion 
with, the political matters and occurrences which preceded 
the revolutionary movements in the Canadas of 1837 and 
1838 — and that we did not interfere until we beheld a 
civil commotion began and in full operation in those pro- 
vinces — and our interferance and our services had been 
asked for by men on whom had been bestowed the high- 
est honors at the disposition of the inhabitants of those 
provinces. Nor did we connect ourselves with the revo- 
lutionary movements in those provinces until we had seen 
that your Majesty's government had failed there to give 
security to life and property, (the only legitimate purposes 

2 



14 LETTER TO THE BRITISH QUEEN. 

of government;) and that robbery, arson and murder were 
perpetrated with boldness and impunity in every section 
of the country ; nor until we had seen thousands of the 
most worthy, honorable and respected inhabitants of those 
provinces, seized without proof of crime — and upon accu- 
sations, evidently false an<l only made by the most arrant 
vagabonds, thrust into prison — their homes robbed and 
their wives and children driven off from their possessions 
and thrown upon our borders, appealing to our sympathies 
for the bread of existence; nor until we had seen a large 
foreign army landed upon their shores and marshalled 
through their territories, not to defend them from the at- 
tacks of foreign enemies, but to subject the people to 
political slavery. Then, with this picture before our eyes, 
when we were appealed to for assistance, was it not to be 
expected that we should be moved by that appeal ? 

It is notorious that in our course we had the counte- 
nance of some of the best men in America — and that we 
were applauded by a large portion of our fellow citizens ; 
and your Majesty may have known that there has been 
placed upon the banks of the Hudson, a monument to the 
memory of Thadeus Kosciusko — and that our citizens in 
1824 raised the triumphal arch for Lafayette. Were not 
those things done as rewards for similar acts as these of 
mine ; and of the other American citizens whom your Ma- 
jesty's government now have incarcerated in its dun- 
geons ? That they wore so there can be no doubt ; and is that 
not in effect, as much as to say to the young and gallant 
of our country — " Go and do likewise and be alike honor- 
ed ?" So we received it — and if we have sinned, it is no 
more our fault than that of the whole American people. 

We did no more than we had seen repeatedly perform- 
.ed by American citizens in aid of the revolutionists of 



LETTER TO THE BRITISH QUEEN. 15 

the provinces of other countries ; and we had seen British 
subjeots giving- the same aid to the revolutionists of the 
Spanish colonies of South America, which we proposed to 
give to the Canadians. We had seen British subjects 
doing more to aid a revolution in Greece than we had of- 
fered to do for the Canadians. We had seen British sub- 
jects effecting more in carrying out a revolution in Portu- 
gal than we had aimed to do for the Canadians ; and all 
these things were done while there were treaties of peace 
and amity existing between Great Britain and the govern- 
ments of all those countries I have mentioned ; and the 
only interferance by the British government with the pro- 
ceedings of British subjects, in their attempts to give aid 
to revolutionary movements in other countries^ I find re- 
corded in the annals of that country, occurred in 1819. 
An individual bearing the name and title of Sir Gregor 
McGregor, who had received a commission as a general 
in the army of one of the revolted Spanis-h provinces of 
South America, purchased a number of ships in England 
for the South Americans — and engaged of British sub- 
jects, officers and soldiers, amounting to a considerable 
force ; and having embarked them on board his ships, 
with a quantity of arms, military stores and camp attirail 
and dropped down to the Downs, (so as to be entirely out 
of the reach of the government, as soon as it might be for 
his safety or interest,) a bill was introduced into the Bri- 
tish parliament to prevent enlistments in England for 
foreign service. In the debate on this bill. Sir James 
Mcintosh, a distinguished statesman and member of the 
commons of Great Britain, made a, statement which is so 
full of historical information, that I deem it essential to 
my purpose to recite it for your Majesty's consideration. 
H<? said — 



16 LETTER TO THE BRITISH QUEEN. 

" The historieal records of England affords innumera- 
ble instances of British troops serving- under foreign belli- 
gerents, without subjecting themselves to any penalty in 
consequence. A Catholic regiment served in the Spanish 
service in Flanders under Lord Brudenel of Wardour, a 
nobleman distinguished among the first of his contempo- 
raries ; and a regiment of Scottish catholics, commanded 
by the Earl of Home, entered the service of the King of 
France. In neither instance, however, was any breach 
of neutrality supposed to have taken place. But perhaps 
it might be more agreeable to the taste of the right hono- 
rable gentleman opposite, if he cited S^danish examples to 
justify the proceedings against which the present bill was 
brought in. Not only was there the authority of facts 
and historical experience against the principle of the pro- 
posed measure, but there was that of the writers of the 
laws of nations, particularly one of the most intelligent of 
those writers, the celebrated Bynkershook, who was pre- 
sident of the Courts of Holland, On the question, whe- 
ther it be a breach of neutrality to allow a friendly belli- 
gerent to levy troops in your territory ? he answers in the 
negative. What would have been the cheers of the gen- 
tleman opposite had any member on his side of the house 
ventured upon asserting an opinion similar to that expres- 
sed by this grave authority ? In the war of the Bishop 
of Munster against Holland, in 1666, the States General 
complained to the governor of the Spanish Netherlands, 
that he permitted troops for the service of the Bishop to 
be levied within his territories. What was the governor's 
reply"? That the Spanish territories were equally open 
to the States General as to the Bishop for the purpose in 
question; for although the latter was his friend, he would 
act with justice towards both. But this agreeably to the 



LETTER TO THE BRITISH QUEEN. 17 

modern interpretation of the law of nations, would be con- 
sidered a breach of neutrality. It was clear, however, 
that the Spanish governor thought otherwise. A breach 
of law, forsooth ! What would the scrupulous politicians 
of the present time say, when he mentioned the name of 
one of the greatest princes and most valiant leaders that 
Europe had ever beheld — a man whose sword had vindi- 
cated the cause of civil and religious liberty against the 
combined efforts of tyrannical power — what he asked, 
would they say, when he referred them to the instance of 
Gustavus Adolphus, who had in his pay, not a small por- 
tion of British troops, not a little smuggled army, headed 
by a few half pay officers, on board a transport or two in 
the Downs, but a band of six thousand men raised in 
Scotland — and by whose cooperation, with a handful of 
other troops, he was enabled to traverse a great part of 
Europe, to vanquish the hosts that opposed him — and to 
burst the galling fetters of Germany ? and who was the 
chief by whom those six thousand British troops were led ? 
Not an adventurer, not a Sir Gregor McGregor, of whom 
he knew little and for whom he certainly cared less — but 
the Marquis of Hamilton, a man of the first distinction 
and consequence in his own country, the personal friend 
of the king, from whom, however, he had no license. At 
that time the Spanish and imperial ambassadors were re- 
sident in London, but neither of them presumed to remon- 
strate or make a demand like that which had been made 
in the present day. It was expressly laid down by Vat- 
tel, that a nation did not commit a breach of neutrality by 
allowing its subjects to enter into the service of one belli- 
gerent and refusing the same permission wnth respect to 
another. There ^A'as one case more, which occurred in 
the reign of James the First, to which he could not help 

2* 



IS LETTER TO THE BRITISH QUEEN. 

adverting. At that period a great body of English troops, 
commanded by one of the most gallant captains of his 
day, Sir Horace Vere, who served his time against the 
Spaniards and received pay from a foreign power. Yet 
Gondomar, the Spanish ambassador, whom King James 
was endeavoring, by the most servile and abject submis- 
sion to conciliate, who might almost be termed the vice- 
roy of Spain in this country, who' had sufficient influence 
to cause the murder of that most distinguished individual, 
the ornament of his native country and of Europe, who 
united in himself more kinds of glory than had perhaps 
ever been combined in an individual, that intrepid soldier, 
that skilful mariner, that historian, that poet, that philoso- 
pher, that statesman. Sir Walter Ealeigh — Gondomar, 
whose power protected him from the punishment he de- 
served for such an act, dared not go so far as to require 
the boon which his Majesty's ministers now call on the 
house of commons of England to have the condescension 
to grant !" 

Indeed! by an examination of the record of the times, 
your Majesty will find that whenever there has been ex- 
hibited a similar state of affairs to those which existed in 
the Canadas in 1S37 and 1838, wherever it has been, 
there we have found the British people acting as volun- 
teers with their swords. I bring these facts to the notice 
of your Majesty for the purpose of showing that the Ame- 
rican citizens who embarked in the undertaking to sustain 
the late revolutionary movements in the Canadas, did no 
more than there had been examples set for them in almost 
every country on the face of the earth, by your Majesty's 
subjects ; and that, therefore, although a severe and ener- 
getic self defence was expected to have been met from 
your Majesty's forces — we could not anticipate the treat- 



LETTER TO THE BRITISH QUEEN. 19 

ment which has been bestowed upon those of us who were 
engaged in those revolutionary movements and 'whose 
fortunes it has been to fall into the hands of your Majes- 
ty's government; and I would ask your Majesty, if from 
a government, supported by such people as your Majesty's 
subjects, we had not a right to expect to be met with more 
liberal measures ; and to have received more generous 
treatment than such as has been meted out to us ? 

In a document, very recently published, your Majes- 
ty's governor general of the Canadas has declared " the 
rebellion at an end" — and he has proclaimed, " that he n» 
longer entertains fears of those provinces being again dis- 
turbed by political commotion." I have, also, before 
me a document emanating from your Majesty's govern- 
ment, during the past year, wherein it is shown that your 
Majesty has a military force now organized in the Cana- 
das, amounting to more than 50,000 men, including re- 
gulars and irregulars. While such a force is main- 
tained in those provinces by your Majesty, the idea of 
any successful movement on the part of the revolutionists, 
without the assistance of some powerful nation, having at 
its command great resources and a large and well appoint- 
ed army, is not now likely to be entertained. 

For these reasons, in behalf of the American citizens 
who are now prisoners to your Majesty's government, I 
would respectfully solicit your Majesty to notice their con- 
dition ; and so to consider their case as to allow them to be 
speedily released from their present confinement and per- 
mitted to return to their country and friends. 
All of which is respectfully submitted. 

For your Majesty's early consideration. 

TH: J. SUTHEELAND. 
New York, January 1, 1840. 



(A.) 

To THE Eight Honorable John George Earl of Dur- 
ham, Viscount Lajibton, &c. &c. &c. Knight Grand 
Cross of the most Honorable Military Order of the 
Bath, one of Her Majesty^s viost Honorable Pri- 
vy Council, and Governor General, Vice Admiral and 
Captain General of all Her Majesty's Provinces luithiii 
arid adjacent to the Continent of North America. 
My Lord — The fact that I, (a citizen of the United 
States of America,) am now detained as a prisoner in 
this fortress, I must believe is well known to your Lord- 
ship ; and therefore, I beg permission to call your Lord- 
ship's early attention to the causes and circumstances of 
my detention and imprisonment by Her Majesty's Govern- 
vernment, to the end that your Lordship may order my 
immediate liberation. 

Born and educated in a republic where no titles are con- 
ferred and no distinctions recognized, except those limi- 
ted to place ; and where the most exalted in power may be 
familiarly approached with the most homely language, I 
am, my Lord, consequently wholly uninstructed in the 
manner in which it is usual for persons of your Lordship's 
exalted rank and station, in this country, to be addressed ; 
and at this moment I find myself not a little embarrassed 
in the choice of words to convey my ideas, for while I 
would approach your Lordship with all the deference and 
courtesy of language your Lordship is entitled to, and 
which it would be as creditable to myself as respectful to 
your Lordship for me to observe, I am in danger of being 
thought to make an unbecoming supplication. Therefore, 
I beg I may be allowed to address ^'our Lordship in the 
manner common to my own country; and then, however 



22 LETTER TO LORD DURHAM. 

different may be the language of this, from the commu- 
nications your Lordship has been in the habit of receiv- 
ing, while it is recollected, I am an American citizen, I 
would have your Lordship regard no expression of mine 
as intentionally indecorous. 

The Lieutenant Governor of the Province of Upper 
Canada, having caused information to be given me " that 
copies of all the papers and documents connected with 
my cayture and detention, and trial before a Militia Gene- 
ral Court Martial of that Province, (of which trial I am to 
presume your Lordship has been in some manner advised,) 
had been transmitted to the Home Government of Great 
Britain for Her Majesty's consideration," I had intended 
this communication for the Secretary of State for the 
Colonies; but having been, (unexpectedly to me,) re- 
moved into this Province, it has suggested itself to my 
mind that the determination of my case is now within the 
prerogative of your Lordship, and that it might be regard- 
ed as indecorous, on my part, to attempt to pass your 
Lordship with a communication to one of Her Majesty's 
Secretaries of State, at London. If I am in any way 
mistaken, I trust your Lordship will do me the kindness 
to cause this communication to go into the hands of those 
of Her Majesty's Government, who do hold the preroga- 
tives, and whose duty it is to hear and determine this 
matter, in which my future liberty is concerned. 

I would state for your Lordship's consideration, that at 
the time an attempt was made, during the past year, by a 
portion of the inhabitants of the Province of Upper Ca- 
nada, to effect a political revolution in that Province and 
to establish a government therein, independent of Great 
Britain, numbers of the inhabitants of the Province fled 
to the borders of the United States, and there painted and 
described to the people of my country many grievances 



LETTER TO LORD DURHAM. 23 

to which they alleged the people of these Provinces vvere 
subjected by the system of Colonial Government main- 
tained herein by the British nation ; and that such de- 
scription and statements of wrongs were generally be- 
lieved by my countrymen: and your Lordship, no doubt, 
has been advised that a large majority of the citizens of 
the United States, bordering upon the Provinces of the 
Canadas, then took a deep interest in the political affairs 
of these Provinces, and warmly espoused the cause of the 
revolutionists. That such was the fact, and that among 
the number, I was one, I would have your Lordship to 
understand. 

At that time, it was represented to me by recent inha- 
bitants of the Canadas, (many of whom had held some 
of the highest political stations in the Provinces,) that the 
number of the people of the Province of Upper Canada 
who were disaffected towards the British Colonial Govern- 
ment, and who were then disposed and ready to try an 
appeal to arms, and make the effort, in connexion with 
the people of the Lower Province, to establish the political 
Independence of the Canadas, amounted to mare than three- 
fourths of the whole population of the Province; and be- 
lieving, as I certainly did, that the insurrection which 
was then begun would amount to a general rising of the 
inhabitants, I consented to be employed as one of the offi- 
cers to conduct the military operations on the part of the 
Revolutionists : and on or about the 16th day of December 
last, I joined an armed body of men who had taken pos- 
session of, and who then occupied Navy Island in the 
Niagara River ; and there, as second in command of the 
force, I used the utmost of my abilities and exertions to 
fortify the Island so as to resist any assault from Her Ma^ 
jesty's forces, and to reduce the officers and men compo- 
sing the force congregated at that place to such a state of 



24 LETTER TO LORD DURHAM. 

discipline as would enable them to act in the field against 
Her Majesty's troops; and that I was thus employed on 
Navy Island until about the 2Sth day of December, when 
I left the Island and proceeded to the frontiers on the De- 
troit River, with instructions, from the persons under whose 
orders I acted, to take the command of a force of armed 
men which was being embodied in that vicinity to assist 
in sustaining the revolution ; and on the 8th of January, 
(1838,) I arrived on the Detroit River, and there found 
a considerable force embodied, with which I remained un- 
til the 10th day of the same month. On the 9th, with a 
small detachment of the force placed under my command, 
I took possession of Bois Blanc, (an Island in the Detroit 
River, which is said to be within the Province of Upper 
Canada,) driving therefrom Her Majesty's forces, by 
which it had been occupied — and capturing, at the same 
time, a stand of Her Majesty's colors, with a large quan- 
tity of provisions and military stores belonging to the 
forces of Her Majesty which had fled upon our approach. 
My taking possession of Bois Blanc was an act preparato- 
ry to the making of an intended descent upon the Pro- 
vince for the purpose of co-operating with the force then 
on Navy Island. But through the disobedience of my 
orders by some of the individuals who were there acting 
as officers under my command, having lost a schooner we 
possessed, with a large quantity of arms, ammunition, mili- 
tary stores and camp equipage prepared for the expedi- 
tion ; and finding that the whole of the body of men I 
had to command were without the least practical know- 
ledge of military tactics, or of the details of an army, 
and utterly ignorant of the first step of discipline, and 
without officers in any way competent to command them 
— on the 10th day of January I evacuated the post I had 
taken upon the Island of Bois Blanc, and relinquished my 



LETTER TO LORD DURHAM. 25 

command of the force ; and since said 10th day of Janu- 
ary, I was not joined to, or connected with, any persons or 
armed body of men, within the limits of anj" of Her Majes- 
ty's Provinces, or with any such armed hody of men collect- 
ed elsewhere for the purpose of invading any of the Provin- 
ces of Her Majesty; nor was I afterwards engaged in 
aiding any of Her Majesty's subjects who were traitor- 
ously in arms against Her Majesty. 

After having been, the brief time I have mentioned, 
connected with those who were laboring to subvert the au- 
thority of Her Majesty the Queen of Great Britain, in 
the Province of Upper Canada, surrendering my com- 
mand as I have stated, I proceeded to the city of Detroit 
in the State of Michigan, at which place and its vicinity 
I remained until the close of the month of January, when 
I became satisfied the insurrection in Upper Canada had 
entirely failed to present the character of a genera] rising of 
the people, as I had anticipated ; and then, although I had 
up to that time contemplated being again employed as a 
military commander in behalf of the Revolutionists of 
Upper Canada, I was convinced that no further operations 
in behalf of the revolution could, at that time, be carried 
on with any credit to the leaders, or with any chance of 
success ; and accordingly, early in the month of February, 
I tendered to the persons under whose orders I had acted, 
a resignation of the military command with which I had 
been invested, and caused the fact that I had done so, to 
be made known, by a notice, to that effect, published in a 
public newspaper of the city of Detroit, at which place I 
was at the time. But having learned that some of the 
Canadian Refugees remaining at Detroit had taken the 
publication of my resignation and retirement from the 
Patriots to be merely a ruse, and that they supposed I 
still intended further to act with them, that there might 

3 



2S LETTER. TO LORD DURHAM. 

tured by a party of armed men under the command of one 
John Prince, an officer of Her Majesty's Militia of the 
Province of Upper Canada. 

At the moment of my being thus captured I protested 
to the persons by whom I was taken, that I was at the time 
within the limits of the United States ; and gave them no- 
tice that I was an American citizen^ then peaceably pursu- 
ing my oion private business ; and that I was in no ivay 
connected with the Patriots, or with any movements of the 
Canadian Revolutionists. I had thought that being within 
the limits of my own country would have proved a protec- 
tion to my person — but, nevertheless. Prince and his party 
persisted in my capture, and took me a prisoner to Fort 
Maiden in the Province of Upper Canada. 

I was in no kind of military array when captured, nor 
had I any person in my company, except one individual, 
a youth who resided at \the city of Albany in the State 
of New- York, and who was a native born citizen of the 
United States ; and as for arms for offence, ice had none, 
not even such as to defend ourselves with. We had neith- 
er pistols nor fire-arms of any description ; though, it was 
true, we had in our possession two old, futile, inefiicient 
and edgeless swords, which we had found at a public house 
on our way from Detroit, and which we had taken into 
possession solely from the circumstance of their being my 
private property — and not to be used as matter of offence 
or defence. 

Shortly after my being taken a prisoner to Fort Maiden, 
I was removed to the city of Toronto, where immediately 
upon my arrival, by an order of Sir F. B. Head, then 

its of the United States, at a time when I was in no manner connected 
with the RevolutionisiM of the Province; and, therefore, that I ought to be 
set at liberty on the shores of my own country, without further deten- 
tion. His reply was — " they had me — and my capture was justifiable even 
if I had been taken in the city of New- York." 



LETTER TO LORD DURHAM. 29 

Lieutenant Governor of that Province, I was tried by 
lohat was called a Militia General Court Martial, (which 
court consisted of but eight members exclusive of the Pre- 
sident thereof,) under certain statutes, as I was informed, 
passed by the Provincial Parliament of the Province of 
Upper Canada, upon a charge, a copy of which was fur- 
nished me in the words and figures following, to wit : — 
"■ Charge — That Thomas Jefferson Sutherland, being a 
citizen of the United States of America, (the said United 
States of America, being at peace with the United King- 
dom of Great Britain and Ireland,) and having joined 
himself, on or about the 26th day of December last at 
Navy Island, in the District of Niagara, in the Province 
of Upper Canada to William Lyon Mackenzie, and others, 
unknown subjects of our Sovereign Lady the Queen, 
who were then and there traitorously in arms against 
Her Majesty after the 12th day of January last, within 
the limits of the Province aforesaid, was in arms against 
Her Majesty, against the form of the Statute in such case 
made and provided." "A true copy." (Signed,) " James 
Fitz Gibbon, Judge Advocate." 

I was also informed by the said Court Martial, that the 
Charge upon which I was tried, was framed under a sta- 
tute of the Province, which was passed on the 12th day 
of January, A. D. 1838; a copy of which was also deli- 
vered me by the said Court Martial, bearing the title of 
^^An act to protect the inhabitants of this Province against 
lawless aggression from the subjects of foreign countries 
at peace with Her Majesty.^'' 

The first section of this act under which, as I was in- 
formed, I was put upon trial, was in these words and figures, 
to wit : " Whereas a number of persons lately inhabiting 
the State of New- York, or some one of the other United 
States of America, have, within the said State of New-York, 
3* 



30 LETTER TO LORD DURHAM, 

lately enlisted or engaged themselves to serve as soldiers, 
or have procured others to enlist or engage themselves to 
serve as soldiers, and have within the said state of New- 
York, collected artillery, arms and ammunition, and made 
other preparations for a hostile invasion of this Province un- 
der the pretext of assisting certain traitors who have fled 
from this Province to the said United States ; and whereas, 
the said persons without the authority of their Govern- 
ment, and in defiance of its express injunctions, have 
actually invaded this Province, contrary to the faith 
and obligation of the treaties subsisting between the 
United Kingdom of Great Britain and Ireland and the 
said United States, and during the continuance of the 
relations of amity and peace between the two countries: 
and whereas it is necessary for protecting the peace and 
security of this Province to provide for the prompt pun- 
ishment of persons so offending : Be it enacted by the 
Queen's Most Excellent Majesty, by and with the advice 
and consent of the Legislative Council and Assembly of 
the Province of Upper Canada, consj;ituted and assembled 
by virtue of, and under the authority of an act passed in 
the Parliament of Great Britain, entitled, *' An act to re- 
peal certain parts of an act passed in the fourteenth year 
of His Majesty's reign, entitled an act for making more 
effectual provisions for the Government of the Province 
of Quebec in North America, and to make further provi- 
sions for the Government of the said Province, and by the 
authority of the same,' That if any person being acitizen or 
subject of any foreign state or country at peace ivith the 
United Kingdom of Great Britain and Ireland, having 
joined himself before or after the passing of this act, to 
any subjects of our Sovereign Lady the Queen, Her Heirs 
or Successors, who are, or hereafter may be traitorously in 
arms against Her Majesty, Her Heirs or Successors, shall 



LETTER TO LORD DURHAM. 31 

after the -passing of this act he or continue in arms againzt 
Her Majesty, Her Heirs or Successors, rvithin the Pro- 
vince, or commit any act of hostility therein, then it shall 
and may be lawful for the Governor of this Province to 
order the assembling of a Militia General Court Martial 
for the trial of such person, agreeable to the militia laivs 
of this Province ; and upon being found guilty by such 
Court Martial of offending against this act, such person 
shall be sentenced by the said Court to suffer death, or 
suck other punishment as shall he aicarded hy the Courts 

I was also furnished by the said Court Martial with 
a copy of another act of the Provincial Parliament of the 
Province of Upper Canada, hearing date the 6th day of 
March, A. D. 1838, {two days after my capture,) the same 
being a code of " Militia Laws of the Province," under 
one of the provisions of which act, I was informed 
by the said Court Martial, the same had been organized ; 
and under the provisions of this law of the 6th of March, 
the oath administered to the President and members of 
the said Court Martial was framed, and couched in the 
words following, to wit : " You A. B. do swear that you 
will administer justice to the best of your understanding 
in the matter now before you, according to the evidence, 
and the Militia Laws now in force in this Province, with- 
out partiality, favor or affection,^^ &CC. 

Now, if we should suppose that I could be properly 
tried by a Court Martial organized under a law passed 
after my capture ; and that this law of the 12th of Janu- 
ary, under the provisions of which the C^ar^e upon which 
I was tried, was drawn up, had been constitutionally enact- 
ed, your Lordship will perceive that in order regularly to 
convict me of the Change preferred against me, it wjfs ne- 
cessary to establish by proofs — 

\st. That I was a citizen or subject of some foreign 



32 LETTER TO LORD DURHAM. 

State or country at 'peace with the United Kingdom of 
Great Britain a7id Ireland. 

2d. That I had joined myself, hefore or after the passing 
of the act, to some of the subjects of Her Majesty the 
Queen, who loere then traitorously in arms against Her 
Majesty; and had continued so to he in arms after the 
passing of the act, (12th of Jan. 1838.) 

ScZ. That after the passing of the act, (12th Jan.) I had 
been or continued in arms against Her Majesty within the 
Province of Upper Canada, or committed some act of hos- 
tility therein : 

And these were the special averments of the Charge 
upon which I was tried. 

The only testimony adduced upon my trial before the 
Court Martial to sustain the first averment of the Charge 
preferred against me, and to prove the facts necessary so 
to be established on that point in order to bring me with- 
in the provisions of the act, under which it was professed 
I was tried, was the proof that I had, after my capture, ad- 
mitted " that Itvas a citizenofthe United States of Ameri- 
ca,'''' which testimony was, perhaps, so far as it went, suffi- 
cient in itself. But,then, there was noproof or evidence of 
any kind given or offered upon my trial to establish the fact 
that the United States of America, " icas a state or coun- 
try at peace with the United Kingdom of Great Britain 
and Ireland.''^ 

Here I may remark to your Lordship, that it is a 
rule of law, as I helieve, that every averment of a count 
in an indictment, (and consequently every averment of a 
Charge before a Court Martial,) must be proven. (2.) 

(2.) It is an established rule of law that all those facts necessary 
to have existed in order to constitute nn ofience, must be set out in the 
indictment, (orcljarge,) and must be proven. In the 1st of Starkie, p. 
444, it is said, " when there is a failure of evidence to establish any one 
essential averment, the court direct an acquital in a criminal case. Same 



LETTER TO LORD DURHAM. 33 

To sustain the second averment of the Charge and 
to prove the facts necessary to be established on the part 
of the prosecution in order to bring me within the provi- 
sions of the act, one Matthew Hayes was called by the 
Judge Advocate, and sworn as a witness, who testified, 
substantially — " that on the 21st day of December last, 
(1837,) he went upon Navy Island, in the Province of 
Upper Canada — that after he arrived upon the Island he 
saw William Lyon Mackenzie, who asked him what 
brought him there — that he told Mackenzie he came to 
see the Island — that Mackenzie told him he could not leave 
the Island — that he saw me on the beach when he landed 
on the Island — that he saw me on Navy Island from the 21st 
to the 2Sth or 29th of December — could not be positive 
which — that I was in the capacity of second in command 
of the Patriot forces — that I was Brigadier General — that 
he saw me leave the Island — that I went towards the 
shores of New- York — that I addressed the men on the 
Island the day before I left it — and said ' thetj tvere em- 
harked in a glorious caiLse' — and ' implored the God of 
Battles to direct and prosper them^ — that while I was 
there I wore a cavalry sword slung in the usual form — 
that there were no people in uniform on the Island — 
that those on the Island were generally armed with guns 
swords, pistols and pikes — that some had charge of can- 
non — that he saw Mr. Gorham on. the Island who acted as 
aid-de-camp to General Van Eensselaer, and who told him 
he, (Gorham,) came from New-Market in Upper Canada 
— that there were about forty persons on Navy Island 
whom he understood were British subjects — that many 
of them told him so — that they formed a part of the hos- 
tile force — but that all the knowledge he had that any 

authority — p. 371, it is also declared, " that every material and essential 
allegation, and every circumstance descriptive of its identity, must be 
proven as averred." 



34 LETTER TO LORD DTJRHA:*!. 

person he saw on Navy Island at the time I was there 
were British subjects was that they told him so — that 
General Van Rensselaer was in command on Navy Island 
- — ^but that he was sometimes absent — and then I com- 
manded — that General Van Rensselaer was an American 
citizen as he understood — that William Lyon Mackenzie 
held no military command on the Island — that he, Hayes, 
did not go to Navy Island for the purpose of joining the 
Patriots — that when there I told him not to make himself 
uneasy — that he might stop in my quarters — that he was 
detained there against his will — that he considered him- 
self while there a prisoner, not being allowed to go off — 
that I appointed him to the office of Adjutant — which he 
accepted through fear — and continued to do the duty until 
I had left the Island — and until he was displaced on ac- 
count of not acting more efficiently — that he left Navy Is' 
land on the ^ih day of January — after Mackenzie had left 
it, by leave of General Van Rensselaer — that he was not 
again on the Island — that he had never afterwards seen 
any of the persons whom he saw on Navy Island while I 
was there, in any part of Her Majesty's dominions, or 
elsewhere — and that he had not seen me since I had left 
Navy Island, (28th December,) until he saw me present in 
Court." 

But, there was no evidence adduced upon my trial be- 
fore said Court Marrial to prove " that William Lyon 
Mackenzie was a subject of Her Majesty ;"" and other than 
the preceding statement of the testimony of Hayes, there 
was no proof given to establish the fact as alleged *' that 
any of the persons who were on Navy Islaiid at the time I 
was there, were subjects of Her Majesty the Queen of Great 
Britain and Ireland.^'' Nor was there any item of testi- 
mony or proof given on my trial before said Court Mar- 
tial to show " that William Lyon Mackenzie,or any other 



LETTER TO LORD DURHAM. 35 

alleged subject of Her Majesty, with ivhom Iivas charged 
to have been joined in arms against Her Majesty, 07i 
Navy Island, toere at the date of the passage of the act, 
(12th January,) or any time thereafter, traitorously in 
arms against Her Majesty, at Navy Island, or at any other 
place icithin the Province of Upper Canada,^' as averred 
in the Charge, and as it was necessary to have been es- 
tablished on the part of the prosecution against me in or- 
der to bring me properly within the the provisions of the 
act under which it was professed I was tried. Quite the 
contrary, however, was shown, as your Lordship will 
readily perceive by the testimony of Hayes ; who swore 
that " he left Navy Island on the 4:th of January, (eight 
days before the passage of the act,) previous to which time 
Mackenzie had left the Island, and he, (Hayes,) had never 
after he left Navy Island, (4th of January,) seen Macken- 
zie or any other of the persons whom he had seen on the 
Island lohile I was there, in arms in any part of the Pro- 
vince of Upper Canada, and that he had no knowledge of 
any such persons, whatever, since he left Navy Island ;^^ 
and as the testimony of this Hayes might be supposed to 
apply to the 3d averment contained in the Charge, your 
Lordship will perceive he swears positively, " that he 
had not seen me since heleft Navy Island, (4th of January,) 
until he then saw me m Court, on my trial.'''' 

To sustain the 3d averment of the Charge, as well as 
to prove other facts necessary to be established to bring 
me within the provisions of the act, John Prince, the in- 
dividual who commanded the party by whom I was cap- 
tured, and Prideaux Girty, who was also of that party (3.) 

(3.) In the first instance, Major Rudyard with Lieutenant James and 
Lieutenant Wright, were sent over from Maiden to Toronto, to be used 
as witnesses against me on my trial, in order to establish the circum- 
stances of my capture. But, Prince and Girty having arrived at Toron- 
to before the court had commencd taking testimony, they were called 



36 LETTER TO LORD DURHAM. 

were called by the Judge Advocate, and sworn as wit- 
nesses on the part of the prosecution against me. 

Prince testified, substantiall}?- — " that on the 4th day of 
March last, (1838,) he was on the shores of Lake Erie, at 
about 7iine miles helow Amherstburgh, in the Western 
District of Upper Canada, when he saw at a great dis- 
tance^ two objects on the ice — that he was proceeding on 
towards Amherstburgh in company with Girty, and con- 
tinued on his way about one mile, when he discovered the 
two objects were men — that then having procured fresh 
teams, he started off with others in pursuit — that he ap- 
proached within one hundred yards of m3'self and anoth- 
er individual who was then in my company — when he 
and one Haggerty, a companion of his, (Prince's,) got out 
of their sleighs and following me with their guns, hailed 
me, and commanded me and my companion to halt. That 
we did so, and that I then asked ' what do you leant V — 
and said ' loe are American citizens going about our oion 
business'' — that he then told me to consider myself his 
prisoner, and go with him — that I and my companion did 
so without any resistance — but, that / charged him with 
having captured me within the limits of the United States 
— that we had each of us a sword but no other kind of 
weapons — that at the time of my capture I was walking 
towards the Canada shore, of which he said, I was within 
a mile and a half — that the place at which I was captured, 
7vas opposite the Canada shore, three miles beloio Bar Pointy 
commonly called Hartly's Point, and opposite the shore of 
Michigan at or near Gibralter. That when captured, I 
was 07ie mile and a half from the Carmda shore, and ybz^r 
a7id a half miles from the shore of Michigan.^^ Prince, 
also testified — " that at the moment I was captured by him, 

first; and the Jydge Advocate having ascertained that the first named of- 
ficers would not corroborate the testimony given by Prince and Girt)', 
rested the prosecution without calling them. 



LETTER TO LORD DURHAM. 37 

/ informed him I had been rohhed of my baggage at Mon- 
roe, and that 1 was 07i my loay to Lower Sa7idusky, for 
the purpose of intercepting some persons who had been con- 
cerned in the robbery ;^^ and further, " that at the time of 
my capture, I was travelling in a south-easterly directio?i — 
(the direct course, from whence I had started, to 
Sandusky — and a very different one from the Canada 
shore — which lay due north from the place where I was 
captured,) that at the time of my capture, 1 7oas within half 
a mile of a certain schooner which was then frozen in the 
ice at the head of Lake Erie, and eight or nine miles from 
the Island of Bois Blanc — [This schooner it is well 
known, lay at the time, several miles within the lines of 
the United States.] — that I had stated on an examination 
at Amherstburgh, before himself, {Prince,) Girty and 
one Lachlan, all justices of the peace of the Western 
District of Upper Canada, on the day next after my cap- 
ture — (substantially) — ' that I had been on Navy Island 
with Van Kensselaer and Mackenzie — that I had served 
there as second in command — that I had left Navy Island 
on or about the 26th of December — that I had then 
come to the Western Frontiers where I took command of 
an expedition which had been there fitted out — and that 
with a detachment of the expedition I had on the 9th of 
January last, taken possession of Bois Blanc Island, and 
had again abandoned it on the 10th — that I had then giv- 
en up my command and gone to the city of Detroit.' " 

Prince, also produced a paper on which, as he testified, 
he had ,written the substance of what, he said, were my 
admissions; which paper I had not signed, nor been asked 
to sign, as Prince testified ; and he also produced a news- 
paper called the " Detroit Morning Posf — which had 
been published in the city of Detroit in the United States; 
and in the copy of the newspaper he produced, there were 

4 



38 LETTER TO LORD DURHAM. 

printed certain Despatches and Proclamations over my 
name, which he testified I had admitted of having pub- 
lished ; and the papers were all received and admitted 
as testimony by said Court Martial, notwithstanding I ob- 
jected to their being received, on the ground that they 
were irrelevant and improper as proof. 

The testimony of Girty, failed to corroborate that de- 
posed by Prince in many important respects ; though he, 
like Pri?zce, testified, " that they had captured me within 
one and a half miles of the Canada shore ;" (the distance 
I am to suppose, ikey had agreed upon, to call it,) though 
neither pretended to have measured the distance — nor of 
having obtained any certain knowledge of the location and^ 
bearings of the place. Girty testified, " that I was walk- 
ing, at the time of being captured, /roTTZ theCaimda shore, 
down the lake," while Prince swore — " that I was going 
towards the Canada shored Girty testified, " that the 
nearest place on the Canada shore to the spot where I 
was captured ivas Haj'tly^s Point,^'' while Prince swore — 
" that it was three miles below Hartly''s Point. ^^ Girty 
testified, " that the nearest point on the shore of Michi- 
gan to the place of my capture was Point Mouillee,''^ while 
Prince swore — " that it loas at or near Gibralter,^^ several 
miles above the place designated by Girty. Girty testi- 
fied, '■^ that I was captured two miles from the schooner 
frozen in the ice at the time," while Prince swore — " that 
I was captured within half a mile of it." Girty testified, 
'•'that I ivas captured within four and a half miles of 
Bois Blanc Island,"" while Prince swore — 'Uhat I ivas 
captured eight or nine miles helow the same island.'''' There 
were also many other discrepancies in the testimony de- 
posed by Prince and Girty, which exhibited it to be alto- 
'gethera matter of uncertainty — most extravagantly re- 
lated. 



LETTER TO LORD DURHAM. 39 

During the proceedings of my trial, James Macauley, 
Esquire, Surveyor General of the Province of Upper Cana- 
da, was called by the Judge Advocate, and sworn as a wit- 
ness ; and he produced then, a roll of drawings, or parts of 
charts, one sheet of which, he testified — " ivas said to be 
a chart of part of the head of Lake Erie ;" that, on which 
it was alleged, I had been captured. On the chart 
there was a line marked to represent the dividing line be- 
tween Canada and the United States ; which line, however, 
was admitted by the Surveyor General, to be erroneous ; 
and another line was marked upon the chart with a pen- 
cil, which he testified — " he understood to be the true 
line — and that the sheets of drawings, (or charts,) produced, 
were found by him among the records of his office;" and 
this Avas all he testified to in the premises ; and upon this 
showing, the cause was rested on the part of the prosecu- 
tion. 

There was no proof given on my trial which went to 
show how far the dividing line between the two countries, 
in the neighborhood of the place of raj capture, was es- 
tablished from the Canada shore ; or that I was in any 
manner connected, at the time of my capture, with any 
of Her Majesty's subjects, who were or had been, traitor- 
ously in arms against Her Majesty, within the said Pro-, 
vince of Upper Canada ; nor was there any pretence of 
proof set up by the prosecution on my trial, to show that 
I had been in arms against Her Majesty, within any 
of Her Majesty's Provinces, since the 12th day of Janua- 
ry last, (date of passage of the act,) or that I had ever 
been within the Province ; (except the fact of my having 
been on the ice at the head of Lake Erie, at the time I 
was captured,) or that I had committed any act of hos- 
tility therein. - 

On my part, I neither called witnesses in my behalf, nor 



40 LETTER TO LORD DURHAM. 

produced any kind of testimony; relying for my defence up- 
on the evident failure of the testimony, adduced on the part 
of the prosecution, to sustain the Charge preferred against 
me ; with the several objections taken by me, during the 
trial, to the proceedings of the Court Martial, which were 
briefly as follows : 

\st. That one half of the members composing the Court 
had not before sat on a Court Martial. 

2d. That the President of the Court had not before sat 
on a Court Martial. 

These objections were grounded upon information I 
had received, that the President of the Court Martial, 
and a majority of the members, were persons who had 
been recently appointed to office in the Militia of the Pro- 
vince of Upper Canada — that they had been but a few 
days in military employment — and that they had never 
before sat on a Court Martial. Although these facts 
were not disputed nor controverted by the Court, the 
members objected to were all permitted to keep their seats 
as members of the board. The objections were started 
in accordance with the practice usual in the organization 
of Courts Martial in the British Empire. On these points, 
however, it is true, the Militia laws of the Province are 
silent ; but in the absence of any statutory provisions on 
the subject, the usual course, which is in support of the 
objections made, in my opinion, ought to have been re- 
garded. The Practice of Courts Martial, the Articles of 
War of the nation, and the Mutiny Act, are and ought 
to be, as I think, the guide, in the absence of any parti- 
cular statutory enactments. 

3^. That one of the members of the Court, a Major 
Deioson, was at that time, an officer in the regular army 
of Her Majesty, under fill pay, and therefore inelligible 
to sit o?i a Militia General Court Martial. 



LETTER TO LORD DURHAM, 41 

This objection was made in accordance with a provi- 
sion of the statute of the Province, and grounded upon 
information I had received that Major Dewson, was at the 
time a Lieutenant and Quarter Master of Her Majesty^s 
15th Regt. of foot ; (his name appearing on the army list 
as such ;) and that he was, as such Quarter Master, re- 
ceiving full pay. But, notwithstanding the fact upon 
which this objection was based was not denied by Major 
Dewson, nor contradicted by the Court, he was allowed to 
retain his place on the Court Martial, as a member there- 
of.(4.) 

By the only Provincial law which was in force at the 
time of my capture, applicable to my case, (48 Geo. 3d, 
Chap. 1, Sec. 23,) it is provided, " that no officer serving 
in any of Her Majesty's other forces, shall sit on any 
Militia Court Martial," &c. (5.) 

4:th. That the act of the Provincial Parliament of Up- 
'per Canada of the 12th of January, under the provisions 
of which I was tried, was unconstitutional, and unauthor- 
ized by, and u7ifounded upon any delegated authority from 
the Government of Great Britain to constitute it a law. 

The ground I assume, my Lord, is, that a law affecting 
the rio-hts of foreigners can only emenate from the parent 



(4f) By the common law of England, though jurors may be challenged, 
the judges, or justices cannot; but in the courts where the proceedings are 
carried on, according to the civil and common laws, the judges, who like 
the members of Courts Martial, are also judges of facts, may be challenged, 
and thev commonly, of their own accord, decline sitting as judges in a 
cause \vhere they may be supposed to be under the least bias or partiality 
to one side or the other. — /. Coke's Inst. p. 294-677. 
(5.) An extract from the Militia Laws of the Province of Upper Canada, 

passed March 16, 1808— a?«c/m force until the sixth day of March, 1838. 

" Provided always, that the judgment of every such Court Martial shall 
pass with the concurrence of two-thirds of the members, and shall not be 
put in execution, until the Governor, Lieutenant Gvernor, or person ad- 
ministering the Government, has approved thereof: Provided always, 
that no officer serving in any of His Majesty's other forces, shall sit on any 
Court Martial upon the trial of any officer or private man serving in the 
Militia." 

4* 



42 LETTER TO LORD DURHAM. 

State, (if even from such sovereign state it may,) and that 
a case like mine, with all the facts of the Charge, as alleged, 
and intended to have been alleged, fully and sufficiently 
set out, and substantially proved, (which, however, in my 
case I contend have in no manner been done,) is only for 
negotiation between Great Britain and the United States, 
of which latter country I am recognized to be a citizen. 

If the Province of Upper Canada has a right to enact 
or create such a law as this act of the 12th of January, then 
must any and all of Her Majesty's forty Colo?iies have 
equal privileges. The exercise of such privileges, how- 
ever, it is self-evident, would involve the parent state in 
inexplicable difficulties, clashing with its treaties with for- 
eign states, and in a variety of other ways interfering 
with that power and sovereignty,, which it can alone pos- 
sess. Upon examination, it appears to me that the con- 
stitutional act of this Colony, (31st Geo. 3d,) has clearly 
defined the powers given to the Provincial Legislature ; 
and limited its control to certain matters of self govern- 
ment ; such laws not being in contravention to the pro- 
visions of that act, and not repugnant to the laws of the 
empire state. Its treatise are parts and portions of such 
laws, and can only be made by the superior power. See 
Vattel,p. 192. 

By the treaty now existing between the United King- 
dom of Great Britain and Ireland and the United States 
of America, ratified 24th of June 1795, commonly called 
Jay's Treaty, it is provided, (3d article,) " that it shall at 
all times be free to His Majesty's subjects, and to the citi- 
zens of the United States, dwelling on either side of the 
boundary line, freely to pass or repass, by land, or inland 
navigation, into the respective territories and countries of 
the two parties on the Continent of America, and to navi- 
gate all the lakes, rivers, and waters thereof," &c, 



LETTER TO LORD DURHAM. 43 

Then, certainl}-, as I trust your Lordship will allow, a 
right derived from such a source, cannot be abrogated, 
however expedient it might be, by a less authority than 
the one which had created it. The Queen, as supreme 
head of the empire, has the prerogative of making war 
and peace, treaties, leagues and alliances with foreign 
states ; and the Colonists are as fully bound by, and sub- 
ject to, the consequences thereof as the inhabitants with- 
in the realm. See B. Edward's, Vol. 2, p. 353, cited in 
Clarices Colonial Laivs, p. 47. 

It is a restriction imposed by the commission and in- 
structions of the Governor of the Province, " that ike 
laws made in the Colony shall not he repugnant to the laws 
of England.''^ This restriction is enforced by statute 3^ 
and 4:th Will. 4,th, Chap. 59, Sec. 56 — and has regard to 
the laws of all the Colonies of Great Britain, whatever. 
The only exception to this rule, at the time, was in the 
case of the Province of Lower Canada, established by 
1st Will. 4:th, Chap. 20, cited in Clark''s Colonial Laws, p. 
27 ; and upon referring to the A6th Sec. of the 31st Geo. 2d, 
it will be made evident to your Lordship, that no such 
powers as have been assumed by the Legislature of the 
Province of Upper Canada in passing the act under con- 
sideration, could have been intended to be delegated by 
the mother country. 

It seems lo have been contemplated that the Provincial 
Legislature might be disposed to pass laws affecting the 
empire at large in its commerce. Therefore, that power 
was withheld by the above section ; from which it may 
be inferred, fairly and clearly, that for the general benefit 
of the empire, the power of regulating its commerce 
should continue to be exercised by Her Majesty and the 
Parliament of Great Britain, that the solemn obligation of 



44 LETTER TO LORD DURHAM. i 

treaties should not he touched or interfered with^ by so sub- 
ordinate a power as the Legislature of a Colony. 

5th. That the Charge preferred against me^ was not suf- 
ficiently specific, as required by the act under which it was 
framed. 

By reference to the act of the 12th of January, and the 
Charge upon which I was tried, it will be perceived the 
Charge is defective, inasmuch as it is not alleged therein 
"that on, or after, the 12th day of January, 1838, (the 
date of the passage of the act,) I was in arms with any 
of the subjects of Her Majesty within the Province," or 
" that I had so committed any act of hostility therein," as 
required by the provisions of the the act under which the 
Charge was professed to have been drawn up. 

It is a rule of law, " that all penal statutes must be 
strictly construed. See Sec. 14, Geo. 2d, Chap. 6, cited in 
Blackstone' s Commentaries, Vol 1, p. 88, in confirmation 
of this riile. To subject me to the penalties of this high- 
ly penal statute, it should have been alleged in the 
Charge, as well as proven on the trial, " that after the 
12th day of January last, I was in arms with such traitor- 
ous subjects," &c. which was not done. Time ^nd. place 
v/ere also omitted, which were material defects in the 
Charge. See Tytler on Martial Law, p. 214 — 215. 

6th. That the act of'^ the 12th of January, not " affecting 
all Her Majesty^ s subjects,'''' but ^'' particular individuals,'''' 
and those iyidividuals foreigners, loas "a private act,''^ 
and therefore ought to have been duly proven on the trial ; 
but which was not done. 

A public statute requires no proof. See Stark. Evid. 
Vol. 1, p. 163. It is defined to be one " tvhich affects all 
the King^s subjects.''^ I am a foreigner, recognized as such 
in the proceedings against me ; and as this act of the 
12th of January has been made to affect me, and not 



LETTER TO LORD DURHAM. 45 

Her Majesty's subjects, can it be otherwise than "a 
private act ?" which is defined to be such as operates u^- 
on ^^ pa7'ticular per sons, ^^ and is therefore required to be 
proven. It has not even been declared a public act, if 
such a declaration could make it one. To have com- 
menced legally with the proofs on the part of the prose- 
cution, the act should have been proven, as the first step, 
which was not, however, done ; and no evidence was 
given to the Court, (or exhibited to me, a foreigner,) to 
show that any such law had been enacted by the Legis- 
lative authority of the Province, and then in force. See 
3d Campbell, p. 166, Cowp. p. 174, 2d East, p. 221, and 
M East, p. 381. 

In law, there are many presumptions, some obviously 
very violent. Among others, the presumption that every 
one, being a citizen or subject, knows the law, however 
ignorant, or however remote his residence from the law 
making place. Notwithstanding, the individual, (being 
a citizen or subject of the country,) never gave a vote for 
a representative who may have assisted in making the 
law, or indeed from his proverty, or some other reason, 
had no vote to give ; yet, it is presumed he knows the 
law ; it is presumed that either directly or indirectly he 
gave his sanction to its foundation. He belongs to the 
country, and must be governed by its laws. But, can this 
presumption be extended to a citizen of a foreign coun- 
try ? Does he aid, directly or indirectly, or can it be pi-e- 
suvied, that he who has never resided in the country, nor 
received protection from its laws, and who owes no 
allegiance to the government, aided in the formation of 
its laws ? The ansv,'er is clear, that he cannot. Therefore, 
this act which affects foreigners, who could not even be 
presumed to have had any part in framing it, must be 
considered a ^^ private act,' ^ which required proof. 



46 LETTER TO LORD DURHAM. 

Ith. That the Militia laws of the Province of Uppe?- 
Canada^ passed on the 6th of March last by the Pro- 
vincial Parliament of that Province^ under the provi- 
sioms of which, the Court Martial by which I icas tried 
was organized, had an ex post facto operation, as it re- 
garded me, and therefore was not properly applicable. 

The Court Martial by which I was tried, as I have 
before stated, was organized under tlie act of the 6th of 
March, and consisted of a President and eight other 
members, only. Whereas, the Militia laws of the Pro- 
vince in existence and in force at the time of my capture, 
as well as at the time of the passage of the act of the 12th 
of January, (which, by the terms of that act, became an 
essential part thereof, required that all Militia General 
Courts Martial convened in the Province, should consist 
of " a President, ivho should be of the ranh of afield officer, 
and not less than twelve other commissioned officers?'' 

Upon the further examination of British authorities, 
I find it is enacted by 33^, Geo. '^d, Chap. 13, " that the 
Clerk of Parliament shall endorse on every act the time 
it receives the royal assent, which endorsement shall be 
taken to be a part of that act, and to be the date of its 
commencement, where no other is provided." See 6th 
Bac. 371 ; and it is in general true, that no statute is to 
have a retrospect beyond the time of its commencement ; 
for the rule and law of Parliament is, " that a law ought 
to place its mandate, (ought to be in force,) for the future, 
to meet future contingencies or events, not those that are 
past." See 2d Mod. R. p. 310 — Gillmore vs. the Execu- 
tors of Shorter. This case arose upon a promise made 
before the 24th of June 1677. An action was brought 
against his executors, and the question was whether the 
promise, it not being in writing, was within the 29th C. 
2d, Chap. 3d, whereby it is enacted, " that from and 



LETTER TO LORD DURHAM. 47 

after the 24th of June, 1677, no action shall be brought, 
&c. [in certain cases therein mentioned,] unless in writing 
signed." The court said " it cannot be presumed that the 
statute was to have a retrospect so as to take away a 
right of action, which the plaintiff was entitled to, before 
the time of its commencement." See Bac. Vol. 6,^. 370. 

So in my case, on the 4th of March I was captured, 
and on the 13th of the same month, put upon trial on a 
Charge framed under the act of the 12th of January pre- 
ceding ; and I was on the 4th of March, unquestionably 
entitled to a Court consisting of a President and twelve 
other members, corresponding to the twelve Jurors of the 
civil law, instead of the Court by which I was tried, and 
which consisted of but nine memhers, including the Pre- 
sident, organized under a law not in existence when the 
offence was alleged to have been committed, but passed 
subsequent thereto, to wit, on the 6th of March, two days 
after my capture. To my understanding, this'was giving 
the law a retrospective effect, which is directly contrary 
to the legal rules of the country. 

The oath administered to the members of the Court 
Martial by which I was tried, as I have before stated, 
was framed according to the provisions of this act of the 
6th of March, by which the members were sworn to 
adjudge me " according to the Militia laws then in force 
in the Province ;" when the fact was, I was neither tried 
by, nor amenable to any such Militia laws. Therefore, 
the oath administered to the members of the Court was a 
mere nullity. 

8th. That the maps produced to the Court hy the Sur- 
veyor General of Tipper Canada, were n^ot made legal 
evidence of the dividing line between the two countries. 

There was no proof adduced on my trial before said 
Court Martial, which went to show that the plans or 



4S LETTER TO LORD DURHAM. 

charts prodaced by the Surveyor General of the Province, 
purporting to exhibit the line of demarcation between the 
United States nnd Upper Canada, were the original plans, 
settled and confirmed by the commissioners under the 
treaty of Ghent ; or even copies of such plans, duly 
authenticated ; therefore, they were no evidence, and 
ought not to have been received as such. 

^th. That 1 10 as prevented by the Court Martial from 
having the benefit of a cross examination of the Surveyor 
General, to which I was entitled. 

lOiA. That the paper purporting to contain the sub- 
stance of an examination, or admissions made by me, and 
the newspaper containing the Despatches and Procla- 
mations, ought not to have been admitted as evidence. 
It having been proven to the court, that I had neither 
signed the paper, said to contain a statement of my exa- 
mination, or admissions, nor been requested to sign it, 
and had refused ; and, (as I contend,) the matters contain- 
ed in the newspaper produced by Prince were altogether 
irrelevant, and in no manner connected with the Charge. 

Upon such proceedings, and unsupported by any other 
testimony than that which I have here detailed, and after 
I had filed a written defence, the said Court Martial 
adjudged me guilty of the Charge — and sentenced me 
'Wo he transported as a felon, to one of Her Majesty'' s 
Islands during my natural life.''^ Which judgment and 
sentence, I protest to your Lordship to be contrary to the 
statutes and laws of the British Empire, unsupported by 
the testimony, against the usages of civilized nations, and 
to me most cruel and unjust. (6.) 

(6.) After I had been arraigned before ihe Court Martial, one of the 
members called upon me and said — '' He conceived it his duty to inform 
rae that it was the intention of the Government to treat me in a similar 
manner to that in which Gen. Jackson had treated Arbuthnot and Am- 
brister" — which every body knows would be, to try me one day and 
hang me the next. 



LETTER TO LORD DURHAM. 49 

If my reading be correct, my Lord, the laws of the 
British Empire, both military and criminal codes, are intend 
ed to have a general, and not a special application ; and so 
long as such a character shall be maintained for them, 
and they are allowed to have their full force, however 
severe may be any of their provisions or penalties, the 
laius will give no sanction to injustice or oppression. It 
is to be supposed the laws are made, not to have regard 
to the individual, but to the offence. In this is the secu- 
rity of the person from the effects of prejudice, of false- 
hood, and the machinations of the wicked. But, whenever 
the recipient of power, or public functionary, shall, instead 
of dealing with the offence, thrust aside the provisions of 
the laws, in order to adjudge the individual, there is then 
an end to liberty and public safety. Can it be supposed, 
my Lord, that when the laws of a country cease to have 
that respect given them, which places their unim- 
paired operation paramount to every other object, and 
they fail to have force to protect even the guilty, from 
irregular condemnation, they will be found sufficient to 
preserve the innocent ? 

Your Lordship will perceive that the deficiency of the 
testimony adduced upon my trial to sustain th.e Charge 
preferred against me, is as apparent as the irregularity of 
the proceedings ; no one part of the Charge being fully 
sustained, but the fact that I am a citizen of the United 
States, ''to ivhich I have been at all times ready to plead 
guilty:' 

The fact that previous to my capture I had withdrawn 

The manner I was treated upon my trial, by the individuals who 
composed the court, was outrageously savage and brutal. A description 
of their infamous proceedings, it is my intention, hereafter to lay before 
the public in another work. As a tribunal, the court by which I was 
tried had neither analogy nor parallel in the historical records of any 
nation or country — except the account we have of the court instituted 
by Pizarro for the trial of the unfortunate fnca of Peru, may afford one. 

5 



50 LETTER TO LORD DURHAM. 

myself from the cause of the Canadian Revolutionists, and 
that I was, when captured, in no manner connected with 
any person eno^aged in any movements, or intended move- 
ments, of an insurrectionary or belligerant nature in Upper 
Canada, was notorious at the time of my trial, both in 
Upper Canada and on the borders of the United States, 
and might have been established on my trial by an abun- 
dance of proof had the proceedings against me made 
such proof necessary : and to establish the contrary, 
there was no proof. 

The averment that I was captured w^ithin the lines of 
the Province of Upper Canada is in no manner sufficiently 
made to appear. Suppose the statement oi Prince, '' that I 
was taken within a mile and a half of the Canada shore," 
be admitted to be true, then there was no proof adduced 
to the Court on my trial which established the fact, that if 
I had been even at that distance from the Canada shore, 
it would have placed me within its bounds, which is de- 
fined but by an imaginary line running through those 
waters. This point in dispute, however, is of no moment 
to my defence. By the existing treaties between Great 
Britain and the United States, I had a right, as a citizen 
of the United States, to pass unmolested, not only over 
the waters of Lake Erie, but through any part of the 
British Provinces in America. 

The act of the 12th of January provides only for the 
trial of such foreigners, &c. as were in arms against Her 
Majesty, in said Province on or after the 12th of January, 
(the date of the act,) or who should commit hostilities 
therein. Now, when captured, according to the testimony, 
I was peaceably pursuing my course on the ice, at the 
head of Lake Erie, in a south-easterly direction, (the 
direct route from Gibralter to Sandusky in Ohio,) 
unaccompanied by any person but a single individual 



LETTER TO LORD DURHABT. 51 

whom I have before mentined ; (a citizen of the United 
States, like myself, and whom the Lieutenant Governor 
of the Province of Upper Canada has long since set at 
liberty and permitted to return to his home ;) and there 
was no proof given, that I had been at any other time, 
after the passage of the act, within Her Majesty's do- 
minions. 

As to my having committed hostilities within the Pro-' 
vince, subsequent to the passage of the act of the 12th 
of January, there was no proof offered, nor was I charged 
with any such offence. 

It is true, my Lord, that at the time of my capture, 
myself and companion had with us two inefficient old 
swords ; but I submit to your Lordship if that circumstance 
alone can be so tortured and strained as to bring me 
within the Charge of being in arms against Her Majesty. 
It would, I conceive, be as rational to talk of an infant 
having been in array against its parent with a tea spoon. 
To have been in arms against Her Majesty, it was neces- 
sary I should, at the time, have been in some manner 
connected with a military force, sufficient to have resist- 
ed, in a measure at least, Her Majesty's authority. Had 
I been captured while on Navy Island, or at any other 
place in the Province, at the head of and directing, or in 
any. manner aiding an armed force, with but a spy glass 
in my hand, I could not then deny I was in arms against 
Her Majesty, because, forsooth, I carried no offensive 
weapons about my person. Suppose, then, I had been 
taken, while quietly walking alone in the streets of 
Toronto, or in company with another individual, armed 
like a Turk, with pistols, dirk and sabre, but not 
connected with any body of men, by what rule of reason- 
ing, or application of common sense, could it be maintain- 
ed under such circumstances, "that I was in arms against 



52 LETTER TO LORD DURHAM. 

Her Majesty," or that I had thereby offended within the 
intent and meaning of this act of the 12th of January. 
The offence with which I w^as Charged^ is, in its sense, 
the act of levying war against Her Majesty, with her re- 
bellious subjects — and nothing less. Any hostilit}^, or 
aggression committed by one or two individuals 
would be an assault and battery, or an offence of some 
other description or denomination within the purview of 
the civil laws of the Province ; the provisions of which, 
against such offenders, could readily be enforced by the 
aid of a special constable or two, and needed not the assis- 
tance of this most extraordinary penal act, and a Court 
Martial. It seems, however, that the application of this 
act of the 12th of January to me, taking any view of the 
proof, was altogether retrospective in its effect ; and there- 
fore, as an ex 'post facto law, comes under the objections 
I have raised to the application of the law of the 6th of 
March. The circumstances of my having been upon the 
ice at the head of Lake Erie at the time of my capture, 
even if I had been within the limits of Upper Canada, 
and but a mile and a half from its shores, constituted no 
offence of itself; and this is all I have been charged 
with having done since the 12th of January. 

The attempt to prove that I was " oh or about the 26th 
day of December last, [or at any time before or after] at 
Navy Island, in the District of Niagara, in the Province 
of Upper Canada, joined to William Lyon Mackenzie," or 
any others, subjects of her Majesty the Queen, was an 
equal failure, as I have before noted to your Lordship ; 
as there was not even an offer of any proof whatever, to 
show that William Lyon Mackenzie, with whom it was 
alleged I had been joined, was a subject of Her Majesty ; 
nor was there one jot or tittle of evidence given upon my 
trial to establish the fact alleged in the Charge^ that 



LETTER TO LORD DURHAM. 53 

Mackenzie, or any other of Her Majesty's subjects, with 
whom it was alleged that I had been joined, " were trai- 
torously in arms against Her Majesty, on or after the 12th of 
January last, within the limits of the Province of Upper 
Canada ;" and without the establishment of such facts, 
by sufficient proof, the Charge remained unsupported. — 
Yet, in defiance of these palpable defects in the proof — 
and when it was evident I was justly entitled to an ac- 
quittal, the Court Martial adjudged me guilty of the 
Charge. 

It will not be improper for me now, I trust, to exhibit 
to your Lordship wherein I think my case has been sub- 
jected to an undue influence. About the same time that 
my trial commenced, (which was not concluded for nearly 
forty d-ays,) a British subject by the name of Edvi^ard A. 
Theller, who is now imprisoned in this fortress, was put 
upon trial upon an indictment for treason. He had been 
engaged in one of the revolutionary movements of Upper 
Canada, with which I was connected, and became a prison- 
er ; whereupon, being a natural born subject of Her Majes- 
ty, an indictment for treason was preferred against him. 
Upon his trial, Theller alleged that he had been created a 
citizen of the United States; and set up the plea, that 
therefore, he could not be legally charged for treason, as 
a subject of Great Britain. The plea, however, availed 
him nothing on his trial, and he was condemned and 
sentenced to be executed ; and when he again urged it 
to the Lieutenant Governor, as a ground for a respite 
until the opinion of Her Majesty's Government in Eng- 
land could be taken in the case, it still seemed to avail 
him nothing, until it was understood that the Govern- 
ment of Upper Canada had come to the conclusion to deal 
with its political offenders by classification; then, this man, 
together with his friends, (among whom he might num- 

5* 



54 LETTER TO LORD DURHAM. 

ber the most of the people of his particular country, in 
Toronto,) laid hold of me as an available sacrifice, to 
gain him a respite, which it was believed would be the 
means, at least, of saving his life. To this course, Thel- 
ler the more readily resorted as he was aware that I held 
his conduct at the time of his capture, as any thing but 
creditable to himself. At this time, my case had been 
determined, and it was then urged upon the Lieutenant 
Governor, Sir George Arthur, that it would be very 
illy received by a portion of the inhabitants of the Pro- 
vince, (his particular countrymen,) if Theller should be ex- 
ecuted, since I, one whom they alleged was a much great- 
er offender, had not been subjected to capital punish- 
ment ; and to give weight to their arguments, all my acts 
were greatly magnified, and both my character and con- 
duct most grossly misrepresented ; whereby I may well 
suppose the mind of Sir George Arthur, w^ho knows 
nothing of me, but by the partial representation of Thel- 
ler's friends, and others, who are far from being friends 
to me, has been much poisoned and embittered towards 
me ; and it has been suggested to me, (with how much 
justice I cannot say,) that without this influence, I had 
long since, and while yet in Upper Canada, been releas- 
ed from imprisonment by the Lieutenant Governor of that 
Province, instead of being sent here, to be detained. 

You may ask, my Lord, what proof have I that this 
course, of which I complain, has been pursued towards 
me ? I answer, as one evidence, I have before me a 
printed document emenating from one of the Common 
Council Men of the city of Toronto, from which I tran- 
scribe the following paragraphs : 

" On its being made public that the life of Sutherland, 
(who was tried by a Court Martial as an American 
citizen,) had been spared, it occured to some of the 



LETTER TO LORD DURHAM. 55 

g-entlemen, who afterwards waited upon his Excellency, 
that it might possibly produce an evil effect on the 
minds of the Irish inhabitants of the Province, .were 
the commander-in-chief of the pirates to escape with 
secondary punishment because he was an American 
citizen;, while his subordinate, was doomed to suffer 
the utmost penalty of the law, for the same crime, 
with the sole difference that the latter convict was a 
natural horn subject of Great Britain, and by birth an 
Irishman. 

" We accordingly waited upon his Excellency to the 
number of eight, who were as follows : Aldermen — 
Dixon, Armstrong, Stotesbury and Taylor ; Common 
Council Men — -Craig, Trotter, Brown and Dr. King. 

" His Excellency received us with the greatest polite- 
ness, and condescended not only to listen to our argu- 
ments, but also to enter into conversation upon it with 
most of us at considerable length; and I am sure 
that those who were with me will agree that far from 
giving us any hope that the consideration we urged 
had prevailed, we were given to understand that it 
was not one upon which his Excellency could act. 

" Afterwards his Excellency did me the honor of send- 
for me, and of informing me that the prisoner had been 
respited until Her Majesty's decision could be had upon 
the case; and his Excellency further informed me that 
the question which was to be submitted to Her Majesty's 
Government, was one of a legal character; and that he 
thought it necessary to state this to me, lest a false im- 
pression might be on my mind, or go abroad, that the 
prisoner was respited on any argument advanced by us. 
(Signed,) "JOHN KING." 

These paragraphs, afford most indubitable evidence 
that there was an attempt made to influence the Lieu- 



54 . . LETTER TO LORD DURHABI. 

ber the most of the people of his particular country, in 
Toronto,) laid hold of me as an available sacrifice, to 
gain him a respite, which it was believed would be the 
means, at least, of saving his life. To this course, Thel- 
ler the more readily resorted as he was aware that I held 
his conduct at the time of his capture, as any thing but 
creditable to himself. At this time, my case had been 
determined, and it was then urged upon the Lieutenant 
Governor, Sir George Arthur, that it would be very 
illy received by a portion of the inhabitants of the Pro- 
vince, (his particular countrymen,) if Theller should be ex- 
ecuted, since I, one whom they alleged was a much great- 
er offender, had not been subjected to capital punish- 
ment ; and to give weight to their arguments, all my acts 
were greatly magnified, and both my character and con- 
duct most grossly misrepresented ; whereby I may well 
suppose the mind of Sir George Arthur, who knows 
nothing of me, but by the partial representation of Thel- 
ler's friends, and others, who are far from being friends 
to me, has been much poisoned and embittered towards 
me ; and it has been suggested to me, (with how much 
justice I cannot say,) that without this influence, I had 
long since, and while yet in Upper Canada, been releas- 
ed from imprisonment by the Lieutenant Governor of that 
Province, instead of being sent here, to be detained. 

You may ask, my Lord, what proof have I that this 
course, of which I complain, has been pursued towards 
me ? I answer, as one evidence, I have before me a 
printed document emenating from one of the Common 
Council Men of the city of Toronto, from which I tran- 
scribe the following paragraphs : 

"On its being made public that the life of Sutherland, 
{who was tried by a Court Martial as an American 
citizen,) had been spared, it occured to some of the 



LETTER TO LORD DURHAM. 55 

gentlemen, who afterwards waited upon his Excellency, 
that it might possibly produce an evil effect on the 
minds of the Irish inhabitants of the Province, .were 
the commander-in-chief of the pirates to escape with 
secondary punishment because he was an American 
citizen^ while his subordinate, was doomed to suffer 
the utmost penalty of the law, for the same crime, 
with the sole difference that the latter convict was a 
natural horn subject of Great Britain, and by birth an 
Irishman. 

" We accordingly waited upon his Excellency to the 
number of eight, who were as follows : Aldermen — 
Dixon, Armstrong, Stotesbury and Taylor ; Common 
Council Men — -Craig, Trotter, Brown and Dr. King. 

" His Excellency received us with the greatest polite- 
ness, and condescended not only to listen to our argu- 
ments, but also to enter into conversation upon it with 
most of us at considerable length ; and I am sure 
that those who were with me will agree that far from 
giving us any hope that the consideration we urged 
had prevailed, we were given to understand that it 
was not one upon which his Excellency could act. 

" Afterwards his Excellency did me the honor of send- 
for me, and of informing me that the prisoner had been 
respited until Her Majesty's decision could be had upon 
the case; and his Excellency further informed me that 
the question which was to be submitted to Her Majesty's 
Government, was one of a legal character; and that he 
thought it necessary to state this to me, lest a false im- 
pression might be on my mind, or go abroad, that the 
prisoner was respited on any argument advanced by us. 
(Signed,) " JOHN KING." 

These paragraphs, afford most indubitable evidence 
that there was an attempt made to influence the Lieu- 



56 LETTER TO LORD DURHAM. 

tenant Governor in behalf of this Theller, at my expense; 
and that too, by individuals of no moderate standing and 
influence ; and although the statement of Dr. King, goes to 
deny the success of the attempt, as toTheller's benefit, it 
will be perceived he does not even profess to negative the 
presumption of its effect upon my case, to which the real 
ground assumed by the Lieutenant Governor in granting 
the respite is immaterial. It was natural that Sir George 
Arthur should have been predisposed to act against me ; 
and as, under such circumstances, men are often moved 
by influences of which they are themselves insensible, 
it will not, I hope, be regarded as disrespectful to Sir 
George Arthur to suggest, that although the arguments 
of Dr. King, and the other friends of Theller, had no 
Aveight to influence His Excellency in Theller's behalf, 
they may, nevertheless, have had great weight to in- 
fluence his deter minatio7i in regard to me. For, you will 
perceive, my Lord, they solicited no favor for Theller, on 
the ground of the merits of his case, but for the reason, 
as they assumed, that I was a worse enemy than he ; a 
ground as extraordinary to be taken, as the facts alleged 
were unreal, and their course of argument negative to the 
opinions of the whole civilized world. 

That we were both chargeable with the same oflence 
against Her Majesty's Government, " with the sole dif- 
ference that Theller was a natural born subject of Great 
Britain," is most true. But national policy, as well 
as individual justice, makes that difference, as I humbly 
conceive, a very great and important one. To sustain 
the government from the aggressions of its enemies, 
Great Britain had no claims upon me. She could de- 
mand from me no more than that I should keep ofl^ my 
hands ; and in assaulting the Government, I made myself 
no more than an open and public enemy, to be disposed 



LETTER TO LORD DURHAM. 57 

of as I have before premised. Not so in his case. By 
birth he owed allegiance to the Government of Great 
Britain, which required him not onl}^ to stay his own hand, 
but to bear arms to sustain it from the ruthless attacks 
of others. In the dominions of Great Britain he had been 
educated, and from the government he had received emol- 
ument, (as I am imformed,) which claims his gratitude ; 
and for his offence, the laws to which he owed obedience 
prescribed the penalty ; and if there may be any credit 
given to his own words, the only property he has any 
claim to on the face of this earth, is an interest, by his 
wife, in an estate in the District of Montreal, in this Pro- 
vince ; and it was, as he has informed me, with a view 
to better his claim to that estate, that he took up arms to 
sustain the revolution. To me, the motive which af- 
fords the least apology, is that which has moved the British 
people, in more instances than one, to acts similar to mine, 
in other countries ; and that which moves the officer 
of all civilized nations to enter foreign service. Then, 
again, I have this difference in my favour ; I was cap- 
tured on the waters of Lake Erie, within the jurisdiction 
of the United States, as I believe I can clearly establish, 
and not until after I had abandoned the cause of the re- 
volutionists of my own accord ; whereas Theller was 
captured decidedly within the Province of Upper Canada, 
and in the very act of his aggression. 

As to the alleged fact that Theller had been made a 
citizen of the United States, in pursuance of the laws of 
the Republic for the naturalization of foreigners, I have 
no knowledge. I would beg to suggest, however, that if 
he had been made such citizen, when he took up arms 
violently to assault the Government of Great Britain, with 
which the United States were on terms of peace and 
amity, he lost the character of an American citizen, as 



58 LETTER TO LORD DURHAM. 

he thereby alienated himself from the Government of the 
United States ; and it is not alone to be perceived by 
a lawyer, that the moment he stepped his foot within 
Her Majesty's dominions, in the attitude of hostility, he 
stood there in the naked character of a subject, and as 
fully amenable to all the laws of the realm, and the pains 
and penalties of treason, as if he had never been beyond 
its limi:;s ; and this, my Lord, is all the question of a 
legal character raised by Theller in his defence, and 
which Sir George Arthur had to submit to Her Majesty's 
Government for a decision. 

In another view, the arguments adduced by Dr. King 
and his associates in behalf of Theller, to the detriment 
of my case, were extremely unjust in their premises. 
The case fairly stated is this: A portion of Her Majes- 
ty's subjects, lately inhabiting the Provinces of the Cana- 
das, (of which this same man is one,) came to our coun- 
tryand complained to us of political grievances, and ex- 
cited our sympathy by the relation of a multitude of 
wrongs, and asked our aid in their quarrel. As would an 
advocate listen to the oppressed, so did we hearken to their 
stories, (and true or false, it is immaterial to the case,) we 
believed them, and consented to espouse their cause — and 
with them were defeated; and so acting in behalf of those 
who had made us their agents, not with the offer of gain, 
but by appealing to our sympathies, according to the rea- 
soning of those gentlemen, we are to be adjudged worse 
offenders than the principals in whose employ we were, 
and at whose instigation we had moved in the matter ; 
and tbis was to be done, in my case, without even the ap- 
plication of the judicial rule of looking into the facts 
as they appeared upon legal investigation. What I am 
now stating, my Lord, is not merely argumentative, but 
facts — facts notorious and not subject to be controverted. 



LETTER TO LORD DURHAM. 59 

In the affairs of these Provinces I have had no direct per- 
sonal interest, and only acted as a volunteer officer. 
Theller never professed to he a volunteer; he declared 
himself to be acting in his own behalf, and for his own 
country, and on his very trial at Toronto, wore the uni- 
form and badges which were assumed to distinguish those 
who professed to belong to the Provinces, from the Ameri- 
can volunteers. (7.) 



(7.) To continue the absurdity, this man, Theller, after being taken 
out of the casemates of the Citadel of Quebec by his Canadian friends, peti- 
tioned the Congress of the United States for the enactment of a national 
law " to prohibit the British Government from trying any of its subjects 
for treason, who had emigrated to this country, and under our laws been 
naturaiiijed, and who were then taken inarms againstthat government;" 
and his petition being put into the hands of Mr. Senator Clay, he to car- 
ry out the joke, presented it to the Senate. What vt'ould such a law 
avail, and who would be bound by it if enacted 1 Not Great Britain, 
certainly. 

Let us suppose it should be settled and established by negotiation be- 
tween the two governments, that the subjects of Great Britain emigra- 
ting to the United States, and becoming naturalized as citizens by our 
laws, should be regarded as citizens by the British Government; what 
would such a contract amount to in case of a war between the two coun- 
tries, when all former contracts would be disregarded ? and I trust that it 
would never be asked by the government of the United States, nor con- 
ceded by the British, that adopted citizens, who make war on their own 
account, while the governments are on terms of peace and amity, should 
have a protection that is not given to natural born citizens. 

I propose^o examine this questien a little further for the satisfac- 
tion of some of our naturlized citizens. It is asked by them, that the 
Governmerft of the United States should obtain from the Government of 
Great Britain, by negotiation, a stipulation on the part of that govern- 
ment to relinquish all claim for allegiance from such of their subjects as 
shall emigrate to this country and become citizens of the United States 
by our naturalization laws. If this measure should be proposed by our 
government and acceded to by that of the British, it could only be car- 
ried out by the enactments of the British legislature, declaring " that all 
British subjects who should absent themselves, (for a term of years to 
be agreed upon and specified,) from their dominions, should be deemed 
aliens, as well as the children born of their bodies in foreign countries;" 
and the British would be sure to require a corresponding enactment from 
our national legislature. By the existing laws of Great Britain, (and the 
same principle is embraced in our own laws,) any individual born in 
their dominions is a subject, and nothing that can be done, will deprive 
him of that character; and all children born of British subjects in foreign 
countries are regarded as subjects also. Hence, it will be perceived, 
that by the existing laws, a British subject may emigrate to this country, 
become naturalized as a citizen, and abide here for any length of time: 
and then, should it become his interest or his desire to return to the land 
of his birth, he may do so, and there possess all the privileges of a sub- 



60 LETTER TO LORD DURHAM. 

This, my Lord, is not the only evidence of my case 
having been subject to an irregular and improper in- 
fluence. At the time my trial commenced at Toronto, 
the administration of the Government of the Province of 
Upper Canada was in the hands of Sir F. B. Head, and 
no trials for treason had then taken place. On the 23d of 
March, during the progress of my trial. Sir George Ar- 
thur arrived at Toronto and assum.ed the reins of the go- 
vernment. At the moment of his doing so, I learn from 
a despatch of His Excellency to Lord Glenelg, that he 
was informed by his Executive Council, it was almost 
universally expected " that the severest penalty of the 
law would be visited upon all the leaders, and most 
guilty traitors" — but he continues to sa}^ — " the mem- 
bers of the Council, themselves, saw the difficulty of pro- 
ceeding to extremes, where so large a number of per- 
sons were concerned;" and that then " much considera- 
tion was given to forming some plan of classing the offen- 
ders." (I quote from the document which is now before 
me.) Before my trial had been concluded, a number of 
convictions for treason, (in addition to that of Theller's,) 
had taken place, among which were those of Lount and 
Mattheivs^ who were sentenced to be executed on the 13th 
of April, then next following. In behalf of these men, 
(Lount and Matthews,) great exertions were made to save 
them from the utmost penalty of the law ; and in three or 
four days, (says the despatch,) petitions signed by no less 

ject, as if he had never been absent from his country; and the children 
of British subjects born in this country, have the privilege of choosing 
between the United States and the British dominions for a residence; 
and they may regard themselves as citizens or subjects, as it shall best 
suit their interest or wishes. To attain the stipulation proposed, all these 
immunities must necessarily be surrendered; and all British subjects who 
take up their residence abroad must as necessarily be made subject to the 
regulation. But it is not to be supposed that all ol the British subjects 
who have taken up a residence in the United States, or even a majority 
of them, are wishing to become aliens to the land ef their birth, while 
they would gain nothing by it, 



LETTER TO LORD DURHAM. 61 

than eight thousand persons had been presented in their 
favor ; which, however, availed them nothing. But, when 
it became known that the Lieutenant Grovernor would 
not interfere with the course of the law in the case of 
Lount and Matthews, it was at the same time understood 
by the public, that while the Government had determined 
that some of those whom they considered the most guilty 
offenders should suffer death, it was their intention to re- 
duce that namher to a very few. Then, as it was to be 
expected, commenced the struggle of the friends of each 
who was considered in danger, to make some others ap- 
pear those greater offenders, who should be included in 
the few destined to suffer the most severe punishment. 
While this was going on, my case was brought to a de- 
termination by the Court Martial — and the Government — 
and the result made public. . I was then, at once, seized up 
on by the friends of all those who were dangerously impli 
cated, as the means to stop the avenues to the scaffold; 
and although the true circumstances of my case were but 
very little known, and less understood, yet almost every 
one of the very persons at whose hands I thought I had a 
right to demand favor, took occasion to proclaim " that 
the Government could not consistently suffer any more ex- 
ecutions, since /, whom they declared to have been one of 
the worst of criminals, had heen suffered to go off with 
secondary punishment ; and it is a known fact that there 
were no more executions for offences then committed. 
Thus it was, while one party, for the charitable purpose 
of serving their friends, took care so to represent me to the 
Lt. Governor, that I should appear the chiefest of offenders, 
and as deserving the worst of punishment, the ultra loyal- 
ists, (who seemed to have looked upon me, as does a child 
upon the fingers of a watch, who, when beholding them in 
their office of pointing the hours, never suspects that their 

6 



62 ' LETTER TO LORD DURHAM. 

movements are not of themselves, but by the influence of 
a machinery, as the mechanic will tell, consisting of 992 
individual parts,) did their best endeavors to hare such 
punishment fixed upon me. 

It needs no further explanation to show how seriously 
all these matters have,, heretofore, and must still, aflfect 
my interest. The party whose cause I had once espoused, 
was then discomfitted and broken up ; and the individuals 
who composed it, like the pieces of a shattered bark upon 
the waters, were made to strike and mar each other, as 
each, struggled individually to save himself; and none 
thought it unjust to exhibit me as the instrument that had 
done the wrong, though they hid the hand that used it. 
While I have thus been borne down by a current of evil 
influences, I have seen others released and returned to the 
bosoms of their families and friends, whose influence 
with the Revolutionists of these Provinces, in comparison 
to mine, has been as a mill-stone to a feather; and whose 
conduct in the matter of the late insurrectionary move- 
ments would be as scarlet, while mine should be as wool. 
If it be remembered, my Lord, that I come from a coun- 
try where it is held a political text, " that to secure life, 
liberty and the pursuit of happiness, governments are in- 
stituted among men, deriving all their just powers from 
the consent of the governed ; and that when any form of 
government becomes destructive of those ends, it is the 
right of the people to alter or abolish it, and to establish 
a new form of government, laying its foundations on such 
principles, and organizing its powers in such forms, as to 
them shall seem most likely to effect their safety and hap- 
piness" — that I am a citizen of a republic whose people 
begin their history as a nation with that of a fierce and 
bloody conflict with the people of Great Britain — of a 
country whose heroes " of story and of song" are only 



• LETTER TO LORD DURHAM. * 63 

those who have " measured steel*,''' aind " clashed iheir 
arms," with Britons, and against colonial rule — and in 
whose 'struggle for independence against the domination 
of the British Government, the aid of , foreign volunteers^ 
greatly, if not mainly, Contributed to its success, when an 
insurrection was proclaimed in these Provinces, and num- 
bers of the agents of the revolt had come among us and 
related their grievances, which were similar in nature 
and character, as we believed, to those which our fore- 
fathers had been subjected to by the British Government, 
while it had the power of coercion, and which had in- 
duced them, in 1775, to make iheir appeal to arms, your 
Lordship could hardly have been surprised to hear 
that I with my countrymen, had lent a willing ear to the 
detail of wrongs given to us by those agents ; and that our 
minds should have then naturally reverted back to the 
lessons of our school books, in which, during our juvenile 
days, we had learned the stories of such volunteers in the 
early and hazardous cause of our own country, as Lafay- 
ette, Steuben, De Kalb, Kosciusko and Pulaski ; and when 
the standard of revolt had been raised, and the banner of 
liberty once unfurled in these Provinces, your Lordship 
could not have been disappointed to find that I, as well as 
many others of my countrymen, were found as volunteers 
around it. For it had been made to appear to us, that 
there was to he a struggle for liberty, in which a large 
majority of the people of the Canadas were willing and 
ready to embark ; and we felt that we were called upon 
to discharge ourselves from a debt of gratitude which we 
had been taught we owed. Such, with the desire to ob- 
tain the small share of applause which might ch^Qce to 
accrue to one of the humble agents in the establishment of 
another Independent Republic on the continent of America, 
were the moving inducements for my embarking, as I did. 



64 LETTER TO LORD DURHAM. 

ill the undertaking, for which I am now heing made to 
suffer. 

It has never been denied by me, that I was for some 
time in the months of December and January last con- 
nected, as a military officer, in the manner I have before 
stated, with forces which have been in arms in Up- 
per Canada, for the purpose of subverting Her Majes- 
ty's authority in that Province, and to establish in its 
stead an Independent Republican form of government. 
Neither will I now pretend that I was at all ignorant of 
the danger in which I v/as placed by connecting myself 
with so hazardous, and as to its result, doubtful underta- 
king. I was at the time, my Lord, full)" aware that while 
on the one hand, success would add to my name a " title 
of glory," and accord me such praise as " wits could 
imagine and poets sing," on the other hand, aside from the 
common dangers of the field, a defeat or failure might 
leave me but the tenant of a dungeon — with a yallet of 
straw. 

In my conduct, I have been charged with having acted 
" contrary to the express injunciio7is of the gvvernment of 
my oion country^'' and of having contravened its laws. 
Yet, it is, nevertheless, notorious that I did not act against 
the will of the people. Until several insurrectionary 
movements had taken place in these Provinces, and until 
I had been present at respectable and numerously attend- 
ed public meetings in my own country, at which the poli- 
tical condition of the Canadas was under consideration, 
and I had heard the cause of the Revolutionists of these 
Provinces advocated by men the most talented and es- 
teemed of my country, I had no connection with any of 
the people of the Canadas ; and until then, I had in no 
manner interfered with the political affairs of the Pro- 
vinces : and when, at a public meeting held in the cit}' 



LETTER TO LORD DURHAM. 65 

where I resided, (at which meeting it was estimated by 
the public prints, " that about every voter was present" 
of a population of 20,000,) I mentioned my willingness to 
be employed as a military officer in the attempt that was 
then being made to establish an Independent Republican 
form of Government in Upper Canada ; the announcement 
was received with cheers ! and when, (after I had left 
Navy Island,) I was passing from one extreme to the oth- 
er of the American frontiers for the accomplishment of 
the objects of the revolutionary movements in which I 
had embarked, at every stopping place on my route, there 
was given me the most flattering reception. Indeed, un- 
til I withdrew myself from further acting with the Pat- 
riots, or Revolutionists of Upper Canada, (which was on 
or about the 5th of Februrary, 1838,) wherever I appear- 
ed I was met with applause and demonstrations of ap- 
proof. 

Had I not then, my Lord, every reason to believe I was 
pursuing the wishes of my countrymen ? and your Lord- 
ship could not expect it to be otherwise than that the peo- 
ple of the United States should be disposed to aid any at- 
tempt, which seemed to promise success, made to estab- 
lish similar institutions to their own in these Provinces, 
although the Government, technically considered, might 
be opposed. Their every day intercourse with the peo- 
ple of the Canadas, and the very fact of their being sat- 
isfied with their own form of government would lead them 
to the act. 

I would suggest to your Lordship that I find in the his- 
torical records of Great Britain, innumerable instances in 
the conduct of the subjects of that country which go far 
to excuse, if not to justify my own. 

If I have read correctly, a large body of British troops, 
raised in Scotland, with Gustavus Adolphus, traversed a 
6* 



66 LETTER TO LORD DURHAM. 

great part of Europe, and mainly assisted in bursting the 
galling bands of Germany ; and those troops were led by 
the Marquis of Hamilton, a man of the first distinction 
and consequence in his country, the personal friend of 
the king, from whom, however, he had no license. 

It is also notorious, and a well authenticated matter of 
historical record, that during the conflict of arms which 
took place at the several revolts of the late Spanish Pro- 
vinces in America, many British gentlemen of known 
honor and probity of character, entered the contest in be- 
half of the Revolutionists of those Provinces and served 
against Spain, while the government of that country was 
on terms of peace and amity with Great Britain ; and 
largely contributed in achieving the independence of 
those countries. Among the names of the most promi- 
nent of such British volunteers stand those of Lord Coch- 
ran and Sir Gregor McGregor ; and if my information be 
correct, this same Lord Cochran, at the time he was car- 
rying his arms against the Spanish Government under the 
flag of its rebellious subjects, was a Peer of the realm, 
and held a seat in the highest legislative body of the 
British Empire. 

Also, in 1825, (if I am correct in the date,) another 
Peer of Great Britain, Lord Byron, joined himself with 
the people who were then in a state of revolt in one of 
the Provinces of the Turkish Empire, while the Porte 
was on terms of peace and amity with the Government 
of Great Britain ; and during his career in the Morea, 
which was brought to a close in a few short months by 
his Lordship's decease, he largely contributed to sustain 
the insurgents : and, also, at or about the same time 
Lord Byron entered Greece, another gentleman from 
England, with two hundred British officers, entered that 
country and espoused the cause of the insurgents of the 



LETTER TO LORD DURHAM. 67 

Morea, without any permission, as it is known, from the 
Monarch of their country, and while there Avas yet no 
rupture between their's and the government of the Sul- 
tan: Although a subsequent act of the British Govern- 
ment would seem a tacit adoption of those proceedings 
of British subjects; as shortly after the occurrence of 
the transactions I have mentioned, Sir Edward Codring- 
ton, in command of a British naval force, assisted by a 
French, and a Russian squadron, without a declaration of 
war, and without any apparent justification, (except as a 
matter of assistance to the Greek Revolutionists,) attack- 
ed the Turkish squadron in the Bay of Navarino, and to- 
tally destroyed it ; and this act was decidedly approved 
of by the British Government, and as a mark of honora- 
ble distinction for his conduct on that occasion, the admi- 
ral had conferred on him the order of knighthood by his / 
sovereign. 

Then, by noticing the occurrences of a more recent 
date, it will be found that but a few years since, an ex- 
Emperor of Brazil, Don Pedro, engaged in England a' 
number of British officers and soldiers, with whom he 
sailed from London for Portugal, where by their assis- 
tance, he was enabled to effect a political revolution in 
that Kingdom. 

It may be further observed, that at this very time, a 
body of British officers and soldiers, assuming to be 
known as a British Legion, is engaged in Spain, in con- 
junction with a native party, in maintaining a civil war 
within that country ; and this body of British subjects, 
as it must be well known to your Lordship, was lately 
commanded and led by a very popular member of the Bri- 
tish House of Commons, (8.) who for his gallantry at the 

(8.) General Sir William Evans. 



6S LETTER TO LORD DURHAM. 

head of the Legion, has recently been honored with the 
order of Knighthood by the sovereign of Great Britain. 

It is also true, if public report be not grossly in error, 
that there are, at this very moment, a number of British 
subjects engaged in arming and sustaining the people of 
Circassia, one of the Provinces of Russia, against the Go- 
vernment of that Empire, and as it is said, if not by the 
expressed consent, without any objection or hindrance on 
the part of the British Government. 

Then, my Lord, if such instances of foreign interfe- 
rence be just, and the British subjects I have mentioned 
were right in their acts, I am at a loss to discover by 
what rule I am adjudged a criminal and condemned as a 
felon. 

I allov/ this principle, my Lord, that if the forces to 
which I was joined on Navy Island, or at any other place 
in the Province of Upper Canada, had been attacked by 
Her Majesty's troops, while I was with those forces, and 
overcome, it was for the conquerers to give me quarter or 
not, as they saw fit ; and if so made a prisoner, the right to 
have detained me, without trial, so long as it might 
please Her Majesty, as a prisoner of war, is not to be 
questioned. But, I know not where, in the annals of 
civilized nations, a precedent may be found for the tri- 
al of a foreigner, by any court, taken under the circum- 
stances attending my capture. It is true, however, that 
during a late revolution in Portugal, Don Miguel, a mod- 
ern Caligula, whose whole history is but the detail of 
atrocities, upon taking as prisoners some of the British 
employed against him, caused them to be shot; and that 
the Spanish Pretender, Don Carlos, has also caused 
some of the British legion, who had fallen into his hands 
as prisoners, also to be executed. But, in neither case 
do we hear of any trials. They were mere acts of expe- 



LETTER TO LORD DURHAM. 69 

diency, adopted by weak and trembling powers, at the 
caprice of the moment ; and which have been pronounc- 
ed murder by all of the enlightened and civilized of man- 
kind — who would now rejoice as much in the destruction 
of Don Carlos, as they have done at the overthrow of 
Don Miguel. 

Well seated power and conscious strength is always for- 
bearing and merciful. Injustice and cruelty are ever with 
the reverse. Bonaparte, standing upon his last foothold 
in Egypt, and beholding it fast crumbling beneath him, 
upon the pretext of expediency put to the sword four thou- 
sand Turks whom he had captured at Jaffa and El Arish ; 
and a Mexican leader, Santa Anna, lately caused to be 
massacred some hundreds of unarmed Americans, who 
had surrendered to him, on the promise of quarter, in 
an engagement near Goliad in Texas. But, notwith- 
standing the wholesale murder on the part of Bonaparte, 
he was compelled to fly from Egypt , and Santa Anna, 
within the short space of a few days after the perpetra- 
tion of the horrifying act on his part, was a prisoner in 
the hands of the compatriots of those whom he had mur- 
dered, suing for his own life ; and Mexican rule was at 
an end in Texas. 

I am, my Lord, constrained to admit, however, that 
upon searching the historical records of my own country, 
I find a very near parallel to this course of conduct pur- 
sued towards me by Her Majesty's Government in these 
Provinces, with this difference, that the material aver- 
ments contained in the Charge preferred against me, did 
not exist, and have in no manner been proven or substan- 
tiated. About twenty years ago, a number of the In- 
dian tribes on the south-western borders of the United 
States, having made inroads into the country, marauded 
and pillaged the white settlements, and commenced a 



70 LETTER TO LORD DURHAM. " 

warfare with our people, when the Government of the 
United States employed General Jackson, with a small 
military force, to subdue the turbulent Indians. He en- 
tered the disturbed district, and there laid his hands on 
two British subjects, Arhuthnot and Amhrister, whom he" 
found with the Indians, and who were charged with hav- 
ing instigated the Indians to commit hostilities against 
the people of the United States. These men, by an or- 
der of General Jackson, were tried by a Court Martial, 
and executed in pursuance of a sentence of that court. 
This act of General Jackson, was, however, in no man- 
ner approved of by either the people or Government of 
the United States. It was termed a *' cold-blooded mur- 
der," and excited the highest indignation on the part of 
the people ; and upon the matter being brought before the 
Senate of the United States, a committee of that body, to 
whom the matter was referred, brought in a report on the 
24th of January, 1819, reprobating the conduct of Gen- 
eral Jackson, in that respect, in the strongest terms. In 
that report it was said — "In reviewing the • execution of 
Arhuthnot and Amhrister, your committee cannot but con- 
sidder it as an unnecessary act of severity on the part of 
the commanding general, (Jackson,) and as a departure 
from that mild and humane system towards prisoners, 
which in all conflicts with savage or civilized nations has 
heretofore been considered not only honorable to the na- 
tional character, but conformable to the dictates of sound 
policy. The prisoners were subjects of Great Britain 
with whom the United States are at peace. Having left 
their country and united their fates with the savages, with 
whom the United States are at war, they forfeited their 
claim to the protection of their own government, and 
subjected themselves to the same treatment which might, 
according to the practice and principles of the American 



LETTER TO LORD DURHAM. 71 

Government, be extended towards those with whom they 
were associated. No process of reasoning can degrade 
them below the savages with whom they were connected. 
As prisoners of war, they were entitled to claim from the 
American Government that protection which the most 
savage of our foes have uniformly experienced when dis- 
armed and in our power. Humanity shudders at the idea 
of a cold-blooded execution of prisoners, disarmed and in 
the po^^er of the conquerer !" In another portion of that 
report the committee say — " The principal assumed by the 
commanding general, (Jackson,) ' that Arbuthnot and 
Ambrister, by uniting in war against the United States, 
while we were at peace with Great Britain, became out- 
laws and pirates, and liable to suffer death,' is not recog- 
nized in any code of national law. Nothing can be found 
in the history of civilized nations which recognizes such 
a principle except a decree of the Executive Directory of 
Ftance during their short career of madness and folly, 
which declares 'that neutrals found on board enemies 
ships, should be considered as pirates.' " 

I have contended, my Lord, as it will be perceived, 
that I have been trie.d by the provisions of a law enacted 
by the Provincial Parliament of Upper Canada, aside from 
any delegated authority from the mother country, and that 
the law was therefore void in all its bearings ; and I have 
further contended that if I were guilty of all with which I 
have been charged^ there was no usage recognized by the 
civilized nations of the earth, which would justify a trial 
on any ground. Nevertheless, I cannot but believe your 
Lordship will readily conceive that when once put upon 
trial, though a foreigner, I had a right to all the privile- 
ges of a subject, and was entitled to have my case adjudg- 
ed by the established legal forms of the country, and ac- 
cording to the intent and meaning of the laws by which I 



72 LETTER TO LORD DURHAM. 

was tried, as expressed in the letter thereof, as much so 
as if the law had been- constitutionally enacted, and I ame- 
nable to its provisions. Yet such has not been meted to 
me ! 

Every code of laws, civil or martial, provides certain 
forms for the distribution of justice, and every deviation 
or departure, on the part of judges, from those rules, is 
no less a violation of the honor and dignity which belong 
to the tribunals of the nation, than a wrong to the indi- 
vidual affected by it ; and whenever judges step aside 
from these forms of the law, to bring even the guilty with- 
in the pale of their tribunals and judgment, they become 
themselves transgressors of the law, and are the greater 
offenders. It was by such conduct alone that the names 
of a Tresillian and a Jefferies have been immortalized 
with the most unenviable reputations ; and in turning 
over the many volumes of reported decisions made by 
British judges in British courts, since the granting of the 
Magna Charta by King John, to the present day, it will 
be found that jurist after jurist have declared that in a 
country of laws, it is not alone sufficient that the offender 
be adjudged guilt)^ — hut guilty according to the law and 
the evidence ; and that on trials involving the life or liber- 
ty of an individual, a strict adherence to form is in all ca- 
ses, considered the best security against oppression and 
injustice. 

By the sentence which has been passed upon me, my 
Lord, and of which I complain, / stand condemned to 
transportation, as a felon, for life ; which is no mitigated 
punishment, but a sentence worse than death ! According 
to the terms of the sentence, I am to be loaded with irons, 
and perhaps, chained to some human being most loath- 
some in person and debased and degraded in mind, and 
thus dragged from one extremity of the globe to the oth- 



NOTE. 73 

er, and there consigned to perpetual slavery, subject to 
the contumely and lash of some brutal master, or petty 
official tyrant, with no friends to administer to my dis- 
tress or soothe my woes, and no companions but the thief, 
the house-breaker, and the foot-pad. In such a circum- 
stanced existence, death in any shape would be a boon ! 
as from education and natural disposition I am likely to 
be made to suffer most from such a condition of life. The 
sentence appears to me, (if intended to be carried into ef- 
fect,) to be a refinement upon cruelty, which no act that I 
have been charged with could justify; and I appeal to 
your Lordship to decide, if aught has been proven against 
me which could justify reducing me to the condition of a 
felon and a slave. 

With the hope that your Lordship will find an 
early and convenient day to look into my case, and that 
your Lordship will make such a determination thereof as 
shall be dictated by justice and the laws of the British 
Empire — this communication, 

Is respectfully submitted to your Lordship, 
For your Lordship's consideration. 

TH : J. SUTHERLAND. 
Citadel of Quebec, 

July 4, 1838. 



Note. The preceding communication was conveyed to the 
Castle of St. Lewis, then occupied by Lord Durham as a Govern- 
ment House; by D. M. Chisholm, Esquire, a captain of the Cold- 
stream Guards, who had been appointed to have the immediate 
custody of my person; but Lord Durham happening to be sbsent 
from Quebec at the time, I was given no reply until the 6th of Au- 
gust, when I received the following note from one ol his Lord- 
ship's Secretaries : 

Castle of St. Lewis, f 
Quebec; 6th August, 3838.5 
Sir— I am commanded by his Excellency the Governor General 
to acknowledge the receipt of your letter and statement addressed to 

7 



74 NOTE. 

him on the 4th of July last, and to inform you in reply that your 
case has been referred to Her Majesty's Government in England, 
with whom alone is vested the power of confirming or altering the 
sentence which has been passed upon you ; and that their decisica 
will be communicated to the Lieutenant Governor of Upper 
Canada. 

I have the honor to be, Sir, 

Your very obedient servant. 

THOMAS E. M. TURTOX, 

Secretary to Government. 
Th : J. Sutherland, Esquire, 

State Prisoner, Citadel. 



(B.) 
To His Excellency Sir George Arthur, Lieut e7iant. Go- 
vernor of the Province of Upper Canada, Major Gene- 
ral, ^c. nolo at Quebec. 

Sir — Since I have been detained a prisoner in this for- 
tress, and now near two months past, * the Honorable 
Charles Buller, Chief Secretary of the Administration of 
Lord Durham, informed me that a despatch had been re- 
ceived at the office of his Government, notifying " that Her 
Majesty's Government in England had directed that I 
should be set at liberty, and permitted to return to my 
own country, on account of the irregularity of the pro- 
ceedings on my trial. But, that I should be required to 
give security not again to enter Her Majesty's domin- 
ions ;" and some few weeks sin<ie I was further notified 
by the same honorable gentleman, " that a pardonfoim^ 
had been transmitted by your Excellency to the office of the 
Government here, but that on the ground of some infor- 
mality it contained, it was. found necessary to return it to 
your Excellency for correction." 

I have also been informed that my case has been re- 
ferred to your Excellency, for a final disposition, by Her 
Majesty's Government, and that my present condition is 
entirely, under your Excellency's direction and control ; 
and, learning that your Excellency had arrived at Quebec, 
I have thought that my situation would be a sufficient 
apology for troubling your Excellency with this commu- 
nication. 

I beg to inform your Excellency that in regard to the 
bail which it has been said would be required from me, I 
liave received no notice, as yet, of the form, nor specifi- 
cally as to the condition ; but whatever might have been 



76 LETTER TO SIR "GEORGE ARTHUR. 

the exactions in either respect, I think I should have been 
able readily to have complied with them, if the proposi- 
tion to receive the bail had been made any time within five 
or six weeks after notice was given me that my release had 
been ordered. The prolonging of my imprisonment, 
however, to this late day in the season, when there are 
few persons here from the upper country, will, I fear, 
render it quite difficult for me to procure bail at this place, 
should my release be now offered upon such conditions. 
But, would your Excellency be pleased to order my re- 
moval from this place back to Toronto, there, I think, I 
should find no difficulty in procuring sureties for any re- 
quired amount. If sent to Kingston, I have reason to be- 
believe I could effect as much at that place. 

The apparent difficulty which surrounds any attempt 
of mine to find sureties in any of Her Majesty's Provinces, 
and more particularly at this place, has induced me to ex- 
amine the principles of the exaction of bail, and upon 
such iexamination, with the knowledge of British institu- 
tions I possess, I am unable to discover in what manner 
security could be taken from me, either to exclude me 
from Her Majesty's dominions, or to bind me to keep the 
peace within them, that would be just and binding in 
law ; and on this subject I addressed a paper to the Ho- 
norable Charles Buller, (which I have been informed by 
him was enclosed to your Excellency,) in which I have 
contended that there is rto statute or law which ivould le- 
galize the exaction of such hail or security from me ; and 
I cannot but think that your Excellency will come 
to the same conclusion, upon examining the paper transmit- 
ted to your Excellency, by me, through the Honorable 
Charles Buller, though all my reasons may not appear 
cogent, and some of rnY objections may seem far fetched. 
Yet, if vour Excellency comes to the conclusion that there 



LETTER TO SIR GEORGE. ARTHUR. 77 

is no statvite or law in existence, under the express provi- 
sions of which I may be required to give security as has 
been exacted, I trust your Excellency will cause me to be 
set at liberty in my own country without further delay. 

Any undertaking on my own part, which might exclude 
me from Her Majesty's dominions, would be readily en- 
tered into and strictly regarded by me for the sake of my 
liberty ; and if on an examination of the whole matter, 
your Excellency determines to exact security, the moment 
I am advised your Excellency is ready to receive it, and 
I am made acquainted with the form and amount of the 
security, / will endeavor to procure it ; and I "heg your 
Excellency will then put me in a condition that shall 
further the attainment of such security. 

I am aware that unfortunately for me, since my cap- 
ture, and while I have remained imprisoned in these Pro- 
vinces, I have been made not only the subject of abuse for 
the newspaper press, but the theme of the resolves of 
public meetings, which must also be known to your Ex- 
cellency. But, believing, as I do, that your Excellency 
will allow neither the pasquinades of the one, nor the reck- 
less advice of the other, to have an influence to prevent my 
obtaining that speedy relief which is allowed me by the es- 
tablished usages of the country, I feel satisfied that your 
Excellency will place my release upon the condition of a 
compliance with no exaction which is not compatible with 
a liberal application of the laws of the British Empire. 

Should any expression contained in this communica- 
tion, or in the paper from me, put into your hands by the 
Honorable Charles Buller, appear to have been couched 
in terms of too much assurance, I beg your Excellency 
will regard the fault as resulting from the effects of my pre- 
sent unfortunate condition, and acquit me of any inten- 
tion to appear indecorous. I do not wish, either, to be 

•7* 



78 NOTE. 

importunate, although I cannot but express my desire of 
a determination of my case. The misfortunes of my life 
have taught me patience in adversity. Yet, it is natural; 
and I hope it will not seem unreasonable, that I should 
greatly desire to be relieved from the tortures of suspense, 
and a gloomy imprisonment. 

Very Respectfully. 

TH: J. SUTHERLAND. 
Citadel of Quebec, ) 
October 8, 1838. S 



Note. To the preceding communication I received no reply 
from Sir George Arthur, although it was put into his hands while 
he was in" Quebec ; and the only answer 1 received to it from any 
one was the following note from one of the attaches of Lord Dur- 
ham : 

Castle or St. Lewis, 

Quebec, October 9lh, 1838. 

Sir — I am directed by the Chief Secretary to inform you that 

your own bail will be taken here in Quebec. That in addition to 

■your personal security, you will be required to get two securities 

in the sum of $2000 each ; and that the condition of the security 

will be, " that in days after your release from Quebec, you 

shall not be in any part of Her Majesty's dominions." 
I am. Sir, 

Your Obedient Servant. 

EDWARD PLAYDELL BOUVERIE. 
Th: J. Sutherland, Esquire, 

State Prisoner, Citadel, 



(C! 
To THE Right Honorable Lord Glenelg, Her Majesty^ s 

Seci'etary of State for the CoIo?iies, ^c. ^c. SfC. 

My Lord — Thomas Jefferson Sutherland, a citizen of 
the United States of America,^now detained a prisoner in 
the Citadel of Quebec, in the Province of Lower Canada, 
by Her Majesty's Government, begs leave, again, respect- 
fully to call the attention of your Lordship to the circum- 
stances of his detention and imprisonment. 
' Could I believe, my Lord, as it was reported to have 
been" said, in effect, a few months since, by an Honorable 
Member of the British House of Commons, (L) in his 
place, " that Petitions and Memorials for relief seldom ar- 
rive at the departments of Her Majesty^s Government for 
which they are intended,'''' or, could I believe that when 
this comes to your hand-, your Lordship would not conde- 
scend to bestow a few moment's consideration upon the 
condition of a stranger you now have as a prisoner, I 
should withhold my pen from these sheets, and resign 
myself to live out the remainder of my days as the tenant 
of a dungeon. 

But, my Lord, believing it is otherwise, by your Lord- 
ship's permission, I would suggest, that having been in- 
formed by His Excellency Lord Durham, " that my case 
had been referred to Her Majesty's Government in Eng- 
land, with whom alone was vested the power of confirming 
or altering the sentence which had been passed upon me," 
some time in the month of July last, I drew up a state- 
ment of the circumstances of my capture, trial, sentence 
and other matters connected therewith, alleging error in 
the proceedings taken against me, from which I desired 
relief, and directing the same to your Lordship, procured 
(1.) Admiral Sir Edward Codrington. 



80 LETTER TO LORD GLENELG-. 

it to be put into the hands of His Excellency Lord Dur- 
ham, with a note requesting it might be transmitted by 
him to your Lordship : and having also been advised that 
a copy of the proceedings of my trial, with my defence, 
and all the papers and documents connected therewith, 
had been previously transmitted to your Lordship, I am to 
suppose, thereby, your Lordship is fully advised of all the 
original circumstances of my case. 

I would further suggest for your Lordship's considera- 
tion, that about the 20th day of August last, the Honora- 
ble Charles Buller, Chief Secretary to the Administration 
of Lord Durham, gave me notice ^^ that a Despatch had 
been received at his office, [or that a despatch had passed 
through his office,] for the Lieutenant Governor of Upper 
Canada, from Her Majesty^ s Government in England, or- 
dering my release on the ground of the irregularity of the 
yj'oceedings on my trials But, at the same time he told 
me " that Iiuould he required to give security not again to 
enter Her Majesty'' s dominions. ^^ I was not, however, no- 
tified of the form of the security that would be required 
from me until the 8th day of October following, when be- 
ing informed by one of the captains of the Guards that 
the Lieutenant Governor of Upper Canada was in Que- 
bec, I addressed him a letter, of which the annexed, 
marked B, is a copy, (2.) to which I received in answer, 
a note from the Honorable Edward Playdell Bouverie, 
one of the attaches of His Excellency Lord Durham, 
simply informing me " that in addition to my own recog- 
nizance, which would be taken at Quebec, I would be re- 
quired to give two sureties in the sum of £500 each, con- 
ditioned that in days after I should be set at liberty in 

Quebec, I should not again be found in any of Her Majes- 
ty^s dominions ; and that such security could alone be ta- 
ken by the Attorney General of Upper Canada, atToron 
(2.) The same which precedes this. 



LETTER TO LORD GLENELG. 81 

to ; and that so soon as the Attorney General of that Pro- 
vince should communicate to the Government here, that 
such security had been filed, I would be set at liberty." 

About the first of October last, I addressed a paper to 
the Honorable Charles Buller, the substance of which is 
embodied in this communication, objecting to the justice 
and legality of the exaction of security from me under the 
circumstances of my case; which paper, I was informed 
by that Honorable Gentleman, had been transmitted to the 
Lieutenant Governor of Upper Canada ; as with him the 
disposition of my case was left entirely: and, now, my 
Lord, having done all within my power to efl^ect, (as I 
am circumstanced,) for the procurement of the sureties re- 
quired from me, I have not succeeded in obtaining them, 
and am still detained under the severest condition of im- 
prisonment, from which I have no good reason to expect 
release, but from the order of Her Majesty's Government 
in England, through your Lordship. 

I have objected, as your Lordship will recollect, that 
the proceedings taken against me before a Militia Gene- 
ral Court Martial of the Province of Upper Canada, by 
which I was tried at Toronto in March and April last, 
were irregular ; and those objections of mine it has been 
conceded, as I am informed, by Her Majesty's Govern- 
ment in England, were well taken ; and I have also con- 
tended, my Lord, that it is properly supposed a general 
principle, that the laws of every nation are provided for 
its own citizens or subjects who receive protection from 
them, and not for the citizens or subjects of another, 
That they have reference solely to the inhabitants of the 
country where the laws are enacted, and have force no 
further than the territories of the government which makes 
the laws, extend ; and that all who are tried by the laws 
must be regarded, so far as the matters of the trial are 



82 LETTER TO LORD GLENELG. 

concerned, as citizens or subjects. Then, if I have been 
correct in my position, I once having been put upon trial 
before a court of one of Her Majesty's Provinces, to be 
judged by Her Majesty's laws for that Province, (as it 
was alleged,) although a citizen of the United States of 
America, and not a subject of Her Majesty, and tried as a 
citizen of the United States, (which I conceive to be an 
anomaly in criminal proceedings;) by being put upon such 
trial, I was thereby vested with all the privileges and 
rights of a subject, in fhe fullest extent, so far as the trial 
and the matters connected therewith- were concerned : 
and I will not believe you will tell me, my Lord, that 
Her Majesty has one rule of law for her own subjects, 
and another for the citizens of other countries ; and as 
Her Majesty's Government have conceded the irregularity 
of the proceedings on my trial, an4 on that ground have 
ordered my release, and if I understand correctly, not at 
all with regard to myself, but as a matter of public jus- 
tice, and respect for the laws of the British nation, which 
Her Majesty's Ministers deem to have been violated. 
Then, it follows, if I have been illegally condemned, as 
has been urged and admitted, the natural as well as legal 
presumption, (without reference to what appeared on the 
trial,) is that I should have been acquitted had the pro- 
ceedings been regular ; and if acquitted, the right of a 
subject which had been conferred upon me, guarantied a 
full and perfect discharge from every part of the accusa- 
tion ; and I do think, my Lord, that such a conclusion is 
by no means the result of a strained argument. 

With the people of the most enlightened and polished 
nations, such acts as are deemed to be crimes or offences, 
are made conventional matters ; constitutions of govern- 
ment and laws are formed for their adjustment, and noth- 
ing is left open to the caprice of the individual who may 



LETTER TO LORD. GLENELG. 83 

chancia to exercise an executive or judicial authority. The 
offence is clearly defined and the laws made specifically 
to provide the process for the application, as well as the 
penalty itself. So I have understood it to prevail with the 
people of the British Empire : yet, by Her Majesty's Go- 
vernment, in violation of this rule, as I believe, I find my- 
self now detained a prisoner. 

In reviewing the circumstances of my detention, I have 
looked in vain for a motive of national interest or expedi- 
ency ; and have alike failed to discover wherein a public 
benefit to the British people could possibly result from it ; 
and in the absence of the appearance of any fact which 
could lead me to suppose that in my present imprisonment 
any such object is intended or sought, I can but regard 
my detention at this time as the result of personal ani^. 
mosity and prejudice ; ,it appearing palpable to me that I 
am not now deprived of my liberty in accordance with any 
regular course of the laws and customs of the British Em- 
pire. I have been charged, it is true, with the commis- 
sion of offences against Her Majesty's laws, in the Cana- 
das, and by those laws I have been put upon trial. But, 
then, there has been an entire failure, regularly to fix up- 
pon me the penalty of those laws by which I have been 
tried ; and when by their provisions I am unquestionably 
entitled to my discharge from further jeopardy or harm, I 
am still held, in violation of those laws, and subjected to 
a degrading imprisonment. I am not conscious that my 
conduct in any instance or respect, has been such that it 
should deny me the grace extended to others taken and 
charged under similar circumstances with myself, or which 
could be made to warrant, (even as a matter of expedien- 
cy,) a violation, by the authorities of the government, of 
the established laws of the British Empire, for the mere 
purpose of bringing harm to my person. 



84 LETTER TO LORD GLENELG. 

As I have neither interest nor property within these Pro- 
vinces, [never having resided for any time in any of H^ 
Majesty's dominions as an inhabitant,] I have assured the 
Lieutenant Governor of the Province of Upper Canada, 
that I was prepared to pledge myself in any manner that 
might be prescribed not again to enter any of Her Majes- 
ty's dominions, without first having obtained the consent 
of the Government thereof, upon the condition of being 
set at liberty and permitted to return to my own country. 
But I have been told, however, that my word is valueless in 
this respect, and that I must give other security before I 
can be discharged. Under these circumstances, I desire 
to be allowed to inquire into the justice and propriety of 
such a demand, as I believe I shall be able to convince 
your Lordship, in this paper, that it cannot be sustained 
by the laws and usages of the British Empire. 

If I am, my. Lord, correctly instructed in the law, in 
order to collect the penalty of a bond or recognizance af- 
ter the condition has been forfeited, recourse to a court of 
law would be necessary, and in such a court no collection 
of the penalty can be made unless the bond or recogni- 
zance shall appear to have been taken in pursuance of 
the provisions of some express statute or other establish- 
ed law of the Province or Empire ; and upon some pre- 
vious inquiry, I am led to believe, there is no statute, or 
law, in existence and in force, in any of Her Majesty's 
dominions, which would give validity to bail or security 
taken from me under th-e circumstances of my case. In 
the civil law, it is understood, obligations are created be- 
tween man and man by consideration and agreement, and 
that the least restraint of a party at the time of the ma- 
king of an obligation, invalidates the whole. Not so in 
the operation of the criminal law. There, every exaction 
is made while the party from whom it is taken is, or is 



LETTER TO LORD GLENELG. 85 

supposed to be, under restraint ; and therefore the law 
allows no exaction to be made except when autho- 
rized by the express provisions of some statute, or in the 
course and practice of the common law, which is equally 
expressed and defined. 

It will be recollected I have neither been indicted, nor 
charged with offence in any manner, in any court, or be- 
fore any officer known to the common law; and only 
when such charges have been preferred on oath, and in 
some manner substantiated, could bail be required of me 
according to that law ; as also, it should be recollected 
that the only proceedings which have been taken against 
me, were before a Military tribunal which knows nothing 
of bail or sureties, and which has long since been dissolved, 
and ceased to exist ; and no court will be found, I appre- 
hend, to recognize the right of executive power, by a mere 
sic volo, to give validity to bail taken aside from the esta- 
blished provisions of the law. But, should it be urged, 
that as I now stand convicted of a charge, and under sen- 
tence, therefore the governmentmay make it a condition of 
my release, that I give such security : to this I reply, 
the conviction is admitted to have been illegal, and 
therefore carries nothing with it ; and had the conviction 
been regular, it would not be different, as it was a convic- 
tion by a Court Martial, which I understand the law and 
the practice to forbid, even Majesty itself, to change or al- 
ter ; (except as an act of mercy in answer to the prayer 
of the condemned ;) though it may be mitigated in its ex- 
tent, or annulled for irregularity by the proper officer. 
Nevertheless, the sentence against me is already altered, 
as instead of being imprisoned in pursuance of the award 
of the Court Martial by which I was tried, I am now de- 
tained in default of sureties to abstain from that which it 
is Twt unlawful for me to do. 

8 



86 LETTER TO LORD GLENELG. x 

When we come to look for a- statute under the provi- 
sions of whi'ch security might be required from me, " not 
again to be found within any of Her Majesty's domin- 
ions," we find; my Lord, that there is a treaty (3.) in full 
force and effect between the United States pf America, of 
which Republic I am a free citizen, and the United King- 
dom of Great Britain and Ireland, whereby the right is se- 
cured to me, as a citizen, freely and at all times, in a 
peaceable manner to enter and come into Her Majesty's 
Provinces in America, for the pursuit of commerce ; and 
while fhat treaty remains in force between the two coun- 
tries, no statute, or law, could exist in Her Majesty's do- 
minions to exclude me from them, or to authorize the ex- 
action of security from me to abstain from the exercise of 
the privilege granted by the treaty, in good faith with the 
government of my country, and without repugnance to 
that treaty, which is a part and parcel of the laws of 
the British Empire ; and I believe we should find none; 
and without such a statute, the bail, if taken, would be al- 
together nugatory. 

(3.) Extract from Jay's Treaty. — " It is agreed, that it shall, at all 
times, be free to his Majesty's subjects, and to the citizens of the Uni- 
ted States, and also the Indians dwelling on either side of the said boun- 
dary line, freely to pass and repass by land or inland navigation, into the 
respective territories and countries of the two parties, on the continent 
of America, (the country within the limits of the Hudson's Bay company 
only excepted,) and to navigate all the lakes, rivers and waters thereof, 
and freely to carry on trade and commerce with each other. But it is un- 
derstood that this article does not extend to the admission of the vessels 
of the United States into the se:iports, harbors, bays, or creeks of his Ma- 
jesty's said territories ; nor into such parts of the rivers in his Ma- 
jesty's said territories as are between the mouth thereof, and the 
highest ports of entry from the sea, except in small vessels trading bona 
fide between Montreal and Quebec, under such regulations as shall be es- 
tablished to prevent the possibility of any frauds in this respect ; nor to 
the admission of British vessels from the sea into the rivers of the United 
States, beyond the highest ports of entry for vessels from the sea. The 
river Mississippi shall, iiowever, according to the Treaty of Peace, be en- 
tirely open to both parties ; and it is further agreed, that all the ports and 
places on its eastern side to whichsoever of the parties belonging, may 
freely bo resorted to, and used by both parties, in as ample a manner as 
any of the Atlantic ports or places of the United States, or any of the 
ports or places of his Majesty in Great Britain." 



LETTER TO LORD GLENELa. 87 

It cannot be denied, tliat if I had been an ijihdbitant of 
any of Her Majesty's dominions, and committed offences 
against her laws, I. might have been tried by those laws, 
and if convicted, sentenced to banishment; and if regu- 
larly convicted, so as to give the government legal custo- 
dy of my person, if I had been sentenced to other punislv 
ment of a severer nature, that sentence might have been 
changed or altered to banishment. ,But, I have never been 
an inhahitani of any of Her Majesty's dominions, nor had 
I passed a night under the protection of her flag, until I 
became a prisoner; and it would be necessary that I 
should first have come peaceably within Her Majesty's do- 
minions, and been amenable to her laws, which I have 
not, before I could legally be banished from them." In 
all the proceedings which have been taken against me by 
Her Majesty's Government, I have been recognized as a 
citizen of the United States, to which country I belong, 
and here stand legally convicted of no offence. 

Then, again ; the bail required, presents a serious objec- 
tion in its form and effect. According to the procedure 
of British Criminal Jurisprudence, (if I rightly understand 
it,) the sureties, whether they be taken for an appearance, 
for the peace, or for any other purpose, taken in pursu- 
ance of the provisions of a statute, or in the course and 
practice of the common law, receive the principal into their 
custody, and are supposed to retain him to answer the con- 
ditions of the bond or recognizance, and by the establish- 
ed laws of England and the every day practice of Courts 
of Criminal Jurisdictiottj bail, or sureties, at any time they 
fear their bond or recognizance will be forfeited by the prin- 
cipal, or when for any reason they become dissatisfied with 
remaining longer as bail or sureties, by the aid of a bail 
piece, or certificate of recognizance, are allowed to lay 
their hands upon the principal and surrender him to the 



88 LETTER TO LORD GLENELG. 

Court or Judge having cognizance of the matter ; and 
on making such surrender, the bail or sureties are exon- 
erated; and the principal neglecting to give new bail may 
be committed. But, this privilege of sureties, which is 
founded in justice and equity, would be denied those re- 
quired of me ; and the moment they signed, they would 
be perpetually and irrevocably bound, as I, instead of be- 
ing placed in their custody, as in the usual manner of bail- 
ment, to answer the conditions of the recognizance, would 
by the very condition of the security required, be placed 
out of their control. It strikes me as reasonable, that bail 
taken in such a manner, so contrary to the spirit of Brit- 
ish institutions, and as I believe, entirely without prece- 
dent, should the bond or recognizance which might be ta- 
ken from me, be forfeited, the sureties, by the principles 
of justice and of law, would be entitled to relief. 

In the proceedings of the criminal law, bail is only re- 
quired, when the party from whom the exaction is made, 
is under a degree, at least, of impeachment of character ; 
and in the letting to bail, regard is had, no less to what 
the bail may have power to effect and enforce, than to the 
probable good faith of the principal towards the sureties ; 
and the requirement of bail is always accompanied with 
the belief, that there will be a due compliance with its 
conditions ; and it is never taken with the view to the 
acquisition of the amount of the penalty. Therefore, it is 
never required for the performance of more than is prac- 
ticable for sureties to ensure by reasonable exertions. 
Hence arises the practice in criminal courts to grant relief 
to sureties, where recognizances are forfeited, whenever 
the bail come in, and establish to the satisfaction of the 
court that they have used due diligence to procure a per- 
formance of the conditions of the recognizance, and that 
the undertaking has been in good faith on their part. 



LETTER TO LORD GLENELG. 89 

Eeasoning thus, if I were to be required to give securitj^ 
to remain in this or any of Her Majesty's Provinces, the 
undertaking on the p^rt of sureties for that purpose, would 
be feasible enough. But who will suppose that the two 
sureties I am required to give, would be capable, with their 
own might, of keeping me out of Her Majesty's domin- 
ions, when I am required by the conditions of the security 
itself to go beyond their reach ? 

The effect of this requirement of bail from me is a sen- 
tence of banishment from Her Majesty's dominions; and 
it is common, and I believe reasonable, to suppose the 
government fully competent, without extrinsic aid, to en- 
force the sentence of its courts and the execution of its 
laws; and I do not understand, my Lord, that in case of 
the banishment of a subject by sentence, or by the com- 
mutation of another sentence, it has been usual in the 
practice of Her Majesty's Government, to require securi- 
ty against a return; although a subject might be suppos- 
ed to be among, or in, the vicinity of his friends, and as 
having the ability of giving such security, if required; 
which supposition cannot be applied to me, a foreigner 
and a stranger in the land. 

It has come to me by information I suppose to be au- 
thentic, that Her Majesty's Government in England have 
decided in the case of Thomas S. Brown, and others, 
" that no person can be legally banished from Her Ma- 
jesty's dominions, luithout trials Then, I may ask what 
is the difference in value between an illegal trial, and no 
trial at all ? In my case, I was illegally tried, and on 
that ground Her Majesty's Government have ordered the 
sentence of the Court against me to be vacated, as a mat- 
ter of respect for the laws of the nation ; and as it has 
been declared that in my case there was a departure from 

the established forms of the law for the distribution of 

8* 



90 LETTER TO LORD GLENELG. 

justice, it is reasonable to believe it had been the inten- 
tion of Her Majesty's Government that I should have 
been absolved from every effect of the sentence ; as 
otherwise, there would be no propriety in meddling 
with it. That no one should be twice judged for 
the same offence, is a principle embraced, as I have read, 
within the British Constitution ; yet, I am re-judged, by 
executive authority, on the grounds of the same Charge 
upon which I have been once adjudged by a Court 
Martial, and an exaction made as the condition of my 
release, which is in itself a sentence of banishment, 
as much so in its effect as the sentence passed upon 
Thomas S. Brown, which has been annulled, as not hav- 
ing been based upon proper legal proceedings. But this 
demand of me for security, in its present effect, operates 
upon me as a much severer sentence. If it was merely 
banishment in its ordinary course, I should have little 
reason to complain. As it is, however, in default of a 
compliance with the demand for security, which I have 
no power to give, I am consigned to the worst condition 
of imprisonment. Again, my Lord ; Sir William Black- 
stone in the first volume of his Commentaries informs us 
" that every Englishman may claim a right to abide in 
his own country so long as he pleases ; and not to be 
driven from it unless hy the sentence of the laio ;" and 
he further remarks " that there is no power in the coun- 
try, except the authority of the Parliament, which can 
send any subject of England out of the land against his 
will — no, not even a criminal ;" and will you, my Lord, 
treat a stranger with less regard to his rights than a sub- 
ject, after having so far naturalized him, as to put him on 
trial by your laws ? 

If the object be to exclude me from Her Majesty's do- 
minions, and I were able to give the security exacted, the. 



LETTER TO LORD GLENELG. 91' 

sureties must necessarily, (as required,) be subjects and 
inhabitants of these Provinces ; and then, the consequence 
of the security would be no more than the change of plight- 
ed faith from the Government to the two sureties ; as they 
could have no control over my person. Will it then be 
presumed that I should regard as less binding a promise 
made, on my own motion, to Her Majesty's Government, 
than I would one made to two private individuals of 
Her Majesty's subjects? Subjects, who may be to-day right 
loyal, though to-morrow they may change their opinions 
and join others in another attempt to subvert Her Majes- 
ty's Government in these Provinces ; and having staked 
their whole fortunes, as well as their lives, by their own 
acts, may then desire me to assist them in the accomplish- 
ment of ends, from which to restrain me, (as I am to sup- 
pose from the nature of the security required,) they had 
become my sureties ; and they would be able to approach 
me with the argument " that the government having re- 
garded my word as nothing, I was bound to place no more 
value on it than Her Majesty's Government had accepted 
it for." As to my own recognizance, it would be as effect- 
ive to exclude me from the country, taken without, as 
with, sureties. 

If this required security can be legally exacted from 
me, there are greater hardships attending the demand, 
than might be apparent at first view. It is often thought, 
my Lord, by those fortunate people who have never been 
required to furnish a security in their lives, that a man 
possessing any character at all, could hardly be without 
some friends, ready to perform the kind office of sureties 
when desired. But, under the most ordinary circum- 
stances, fortunate indeed must be the man, (however ex- 
alted his character, or however much the bright eye of 
friendship may have glistened around his path,) of whom 



92 LETTER TO LORD GLENELG. 

bail has been required by the hand of the law, and 
he has not become fully sensible of this general truth, 
sung by a once well known British bard : 

" Friendship, alas, is but a name, 

A charm that lulls to sleep ; 
A shade that follows wealth and faraCi 

And leaves the wretch to weep." 

Where, then, shall I expect to find sureties to sign for 
me under the unusual, and as I think, most extraor- 
dinary conditions required ? If I have friends, they 
are citizens of a foreign country to this, residing at a 
great distance from these Provinces ; and should they of- 
fer themselves as sureties for me, they would not be re- 
ceived, as they have neither estates nor effects within 
Her Majesty's dominions. 

In these Provinces I have no personal friends, nor even 
acquaintances ; and in my previous communication, I 
have stated to your Lordship the full extent, and all of 
the circumstances of my connexion with the political af- 
fairs of Upper Canada : to the people of which Province, 
I am now to look for bail. Had I, my Lord, been engaged 
in a successful operation, it can hardly be doubted but I 
would then have been able to behold friends around me. 
Now it is very different. If there were of the inhabitants 
of that Province, persons who might have been willing to 
make themselves responsible for my release, some of them 
are now in the same unfortunate condition with myself; 
others have fled from the country, to avoid such imprison- 
ment ; while some have been expatriated by the govern- 
ment, and others have expatriated themselves ; and, as 
of the persons who have been charged with political 
offences in that Province, there having been lately a great 
number discharged upon bail, it is reasonable for me to 
believe that many individuals who might have been dis- 
posed to sign as sureties in my behalf, have already en- 



LETTER TO LORD GLENELG. 93 

cumbered themselves to an extent in that way, which en- 
tirely forbids their now offering themselves fpr me. 
There are others whom I apprehend would consent to en- 
ter the required security for me could they do so without 
subjecting themselves to a charge, or suspicion, of disloy- 
alty ; and, as they fear, even insult, for doing so. I am 
forced to this opinion, from a knowledge of an attempt 
made by private individuals, and as I believe, for private 
motives, to influence the Government unfavorably towards 
me ; and therefore, I may now expect those persons will 
procure every obstacle within their control, to be thrust in 
the way to the attainment of my liberty. 

Again, my Lord ; instead of having been retained in 
the Province of Upper Canada, where I was charged and 
tried, and among the people from whom Lam now requir- 
ed to procure two sureties, I have been removed into this 
Province, six or seven hundred miles distant, where I am 
a stranger, and where I had never before placed my foot 
upon the soil. Here I have remained confined in a dun- 
geon, and not permitted to make acquaintance, hold in- 
tercourse, or even speak to any individuals, except the 
military gentlemen under whose charge I am. Thus, 
when I am asked for bail, the very means of procuring 
it, as it is plain, are withheld from me ! I can see no in- 
dividuals to inspire them with confidence to become my 
sureties, nor to appeal to their sympathies in my behalf. 
I am not now, nor have I been allowed to address any per- 
son by letter, except it be an open communication ; and 
I have reason to believe there are persons in the Pro- 
vince of Upper Canada, who would cause the security re- 
quired for my release to be filed for me, could I see them, 
or address them in such a manner as would be acceptable 
to them ; hut they will not receive a letter from me which 
has passed unsealed through the hands of third persons. 



94 LETTER TO LORD GLENELG. 

Thus circumstanced, my Lord, while imprisoned in a 
foreign country, as much cut off from the world as if I 
were coffined, can it be expected that I, without friends to 
act in my behalf, or even the privilege of confidential cor- 
respondence, should be able to procure bail in another 
foreign country, where I am also a stranger ? I am also 
surrounded by additional difficulties. There are other indi- 
viduals who have been concerned in the late attempt to 
effect a political revolution in the Province of Upper Ca- 
nada, who by the assistance of their friends, with misrep- 
resentation and falsehood, have labored to magnify my 
acts, and give them an importance they have never in 
fact possessed; and they have attributed to me conduct 
I had never conceived, and proceedings I had not partici- 
pated in, with the intent to throw their own acts, or those 
of. their friends, in the shade, and to divest them of their 
due importance, in order to screen themselves from threat- 
ened punishment. 

Now, if I were put in a condition to bring my 
case before one of Her Majesty's superior courts of law, 
I should not fail, there to procure an order of prohibition 
against the sentence w^hich has been passed upon me, 
when an unconditional release would follow ; and I can- 
not refrain from the inquiry of your Lordship, if it be 
compatible with even handed justice, longer to detain 
me in default of the sureties required ? 

How other men may feel in like circumstances, my 
Lord, I know not ; but as for myself, it required but 
a portion of that pride of spirit which is in accord- 
ance with my nature, to make me prefer death in any 
shape, to a life of prolonged misery and degradation. 
Hence it has been impossible that I should regard the 
sentence which has been passed upon me as one of any 
mitigated severity. If the act of Her Majesty's Govern- 



LETTER TO LORD GLENELG. 95 

ment in making void that sentence is only to vary my 
condition so as to consign me to the narrow precincts of a 
dungeon, where, shut out from the face of heaven, with 
my steps circumscribed to twice the length of my body — 
I am to breath over the same atmosphere day by day for 
an unlimited period, trusting to the mercy of my God to 
forgive my sins, I could no longer dread the approach of 
the moment that should release me from the accumulated 
miseries of my life. 

This paper, my Lord, I have drawn up in my cell, by 
the aid of a rush light, without reference to books and 
authorities, for I have none to refer to ; and without con- 
sultation with friends, or advice of counsel, as I have 
neither here to confer with. The statement of my condi- 
tion may, perhaps, seem a florid account, but I assure your 
Lordship, I have given it no shade of coloring not its 
own. The opinions I have advanced are the unaided re- 
sult of the moment's reflection ; and although I may have 
in some measures misapprehended the letter, or spirit of 
British institutions and laws ; and though I may have ad- 
vanced principles not sustained by the written authorities 
of the nation, or though I may have wandered from the 
path of strict reasoning, yet if I have been correct in any 
one point, I trust your Lordship will allow such argument 
to have its full force and effect, and that your Lordship 
will so consider my case, as to direct that I be immedi- 
ately restored to my liberty, and permitted to return to 
my own country, without further detention. 

While I have urged this, my appeal, in that serious 
and firm language which I deemed most compatible with 
a due regard to myself, I have endeavored to avoid any 
expression which might seem indecorous ; and I assure 
you, my Lord, it has been my earnest desire, to ap- 
proach your Lordship with this communication in the 



96 LETTER TO LORD GLENELG. 

manner and with that respect to which the exalted sta- 
tion and character of your Lordship is entitled : and with 
the hope that it will receive the early and favorable no- 
tice of your Lordship, 

It is very respectfully submitted, 

For your Lordship's consideration. 

TH: J. SUTHERLAND. 
Citadel of Quebec, ) 
Nov. 1st, 1838. S 



Note. I arrived at Quebec on the 10th day of June, 1838, and 
was placed in confinement in one of the casemates of the Citadel, 
in company with Theller, Dodge and seven other Americans ; 
where I remained until the 20th of August, when I was removed 
to a room in another part of the Citadel, which I occupied by 
myself. This was done by the officer of the Coldstream Guards, 
in whose immediate custody I was, on learning that an order had 
been sent out by Her Majesty's Government in England for my lib- 
eration, which he supposed would be immediately carried into ef- 
fect ,• and as he informed me, '* because he was apprehensive that I 
might, if I was allowed to remain with the others, enter into some 
plan for their escape, in which I could assist them after my own 
liberation." 

Previous to my removal, a plan had been formed to effect an es- 
cape — but no steps had as yet been taken to carry it into operation. 
But, when the information was received by Theller that he was to 
be sent to England to be transported, he resolved, with the others, to 
make the attempt to get away. As I was expecting soon to obtain 
my liberation from the Government. 1 had no desire to attempt an 
escape then, (and I was more particularly debarred, having ob- 
tained a number of privileges, among which was that of being out 
during the day time accompanied by a sergeant, and to ramble 
through the works, by pledging myself to Sir James Macdonell not 
lo engage in any such undertaking,) but was disposed to afford 
Theller and the others every facility to do so ; and for this cause, 
when the escape was effected, I had taken from me all the privile- 
ges I had before enjoyed, and was thrust into the black hole for Jive 
weeks ; and it was during my residence in the black hole that I pen- 
ned the preceding letter. Some months after, I was sent into Up- 
per Canada, and there unconditionally released. 



APPENDIX. 



]\IEMBEKS OF THE COURT. 



Names of the Officers^ who composed the Court Martial con- 
vened at Toronto on the ISth day of March, 1838, for- the 
trial of General Sutherland, with their several additions. 

♦ 

COLONEL JARVIS, President, 
Member of the Provincial Parliament of Upper Canada ; Justice of 
the Peace ; Commissioner. of the Court of Requests ; Colonel in the 
Militia, &c. dec. &c. 

COLONEL laNGSMILL, , 

Half-pay Captain in the British army ; Collector of Customs at Port 
Hope in Upper Canada ; Justice 9f the Peace ; Commissioner of the 
Court of Requests ; Colonel in the Militia, &c. &c. &c. 

LIEUTENANT COLONEL CARTHEW, 
Half-pay Lieutenant in the British army ; Deputy Collector of Cus- 
toms at Toronto in Upper Canada ; Justice of the Peace ; Lieutenant 
Colonel in the Militia, &c. &c. «fec. 

LIEUTENANT COLONEL BROWN, 

Half-pay Lieutenant in the British army ; Collector of Customs at 
Coburg in Upper Canada , Justice of the Peace ; Major in the Queen's 
Rangers ; Lieutenant Colonel in the Militia, &c., &c. &c. 

MAJOR GURNETT, 

(A naturalized citizen of the United States,) Clerk of the Peace in 
the Home District of Upper Canada ; Justice of the Peace ; Commis- 
sioner of the Court of Requests ; Alderman of the City of Toronto ; 
Major of the Toronto City Guards, «&c. &c. &c. 

MAJOR DEWSON, 

Quarter Master of the 15th Regt. of Foot in the Britsh army ; Justice 
of the Peace ; Major in the Militia, &c. &c. &c. 

CAPTAIN POWEL, 

Barrister at Law ; Mayor of the City of Toronto in Upper Canada ; 
Justice of the Peace ; Captain in the Militia, &c. &c. &c. 

CAPTAIN FRY. 

COLONEL FITZ GIBBON, Judge Advocate, 
Half-pay Captain in the British army; Clerk of the Provincial Par- 
liament of Upper Canada ; Justice of the Peace ; Colonel in the Mi- 
litia, &c. &c. &c. 



FIRST DAY. 



Tuesday, March 13, 1S38. 

Pursuant to the orders of Sir F. ft. Head, Lieutenant 
Governor of the Province of Upper Canada, a Court Mar- 
tial was convened for ihe trial of Thomas Jefferson 
Sutherland, a citizen of the United States of America, 
(late Brigadier General in the Patriot army of Upper 
Canada,) at the Garrison, near Toronto, on the 13th day 
of March, A. D. 1838. At ten o'oiock in the forenoon of 
that day, Ihe Prisoner, General Sutherland, was brought 
before the Court, and the Charge upon which he was to be 
tried, with the several orders for the convening of the 
Court, were then read by the Judge Advocate. This be- 
ing, done^ and the Judge Advocate having furnished the 
Prisoner with a copy of the Charge, and of the law 
under which it was drawn up, and with a copy of the 
Militia laws of the Province, by the provisions of which 
the Court Martial was said to have been organized, the 
President adjourned the Court till 10 o'clock A. M. of the 
next day. 

[I arrived in Toronto about mid-day on the 12th of 
March, and having been selected by Sir F. B. Head and 
his Executive Council as the first to be made a sacrifice, it 
was at ten o'clock on the morning of the next day that I 
was arraigned before the Court Martial, to be prepared 
for the scaffold which was then yawning for its victim.] 



SECOND DAY. 



Wednesday, March 14, 1838. 



The Court met pursuant to adjournment. Present the 
same members as before. After some proceedings which 



100 PRELIMINARY PROCEEDINGS OF 

were merely preliminary had been gone through with, 
the President adjourned the Court till 10 o'clock A. M. 
of the 16th day of the same month. 



THIRD DAY. 



Friday, March 16, 1838. 



The Court met pursuant to adjournment. Present the 
same members as before. Without proceeding with the 
the trial, the President adjourned the Court till 10 oclock 
A. M. of the 19th day of the same month. 



FOURTH DAY. 



Monday, March 19, 1838. 



The Court met pursuant to adjournment. Present the 
same members as before. Upon the opening of the Court, 
the Prisoner, General Sutherland, was brought before it, 
and asked by the Judge Advocate, "if he had any objec- 
tions to make to any of the members of the Court?" 

The following objections were then delivered to the 
Court, in writing, by General Sutherland. 

1st. I object that Major Dewson, who has taken his 
seat as a member of this court, is an officer, on full pay, 
in the regular forces of Her Majesty; and that he is, there- 
fore, incompetent to sit on this Court Martial, which the 
laws require to be composed exclusively of Militia Officers. 

2d. I object that the President of this Court has never 
before sat on a Court Martial. 

3d. I object that one half of the members of this Court 
have not before sat on a Court Martial. 

The Court was then cleared, and on its being again 
opened, and the prisoner brought in, he was informed by 



THE COURT MARTIAL. 101 

the Judge Advocate that the Court had decided that his 
objections were not well taken. 

The prisoner, General Sutherland, then delivered to 
the Court, in writing, several other objections to its consti- 
tution ; which were alike ruled against by the Court ; 
and it also refused to enter them on the minutes. The 
members who had first taken their seat were then all 
sworn. 

[Notwithstanding a number of the officers composing 
the board had served in the British regular army, in the 
proceedings of this Court Martial, there was but a little 
observance of the established rules and practice of such 
tribunals. In taking their places, the President was seat- 
ed at the head of the board, with the Judge Advocate im- 
mediately on his right, seated as one of the members of 
the board, and indeed acting as such. This should not 
have been. By the rules and practice of Courts Martial 
in the British army, in the formation of a board of Court 
Martial, the President is seated at the head of the table. 
Immediately on the right of the President is placed the 
member highest in rank. The next in rank on the left ; 
and so on, right and left, alternately, according to rank, 
until they are all placed. The Judge Advocate has his 
seat at a separate table, on the left of the President ; and 
the accused is similarly placed on the right. While im- 
prisoned in the Citadel of Quebec, I was present at a 
number of Courts Martial, convened at that place of offi- 
cers of the British regular army, and I observed that such 
was their order of arrangement. On my trial I was fur- 
nished a table and a seat on the left of the President of 
the Court. In taking a vote, the Court Martial by which 
I was tried proceeded without any order, commencing by 
taking the vote of one member at one time, and that of 
another, at another time. By the established practice of 
Courts Martial in the British army, the vote of the offi- 
cer lowest in rank on the board is taken first ; and then 
that of his next superior, and so on, up to the President, 
who is not required to give his vote, unless there be a tie 
of the members'. This practice has been founded upon 
the supposed influence that an old and experienced officer 
might have over a subordinate, who may be a youth of 
9* 



102 PRELIMINARY PROCEEDINGS OF 

inexperience ; and it is adhered to in order to prevent the 
vote of the one controlling the other. The principle up- 
on which this practice is founded, is carried still further 
in the practice of Courts Martial in the French army. — 
There, a vote is taken by delivering a sheet of paper to 
the junior officer of the board, who writes on it his vote, 
and then folding over the paper so as to cover it from 
view, hands the sheet to the next superior in rank, w^ho 
does the like, and hands it to his next superior ; and thus the 
paper is passed from member to member, until it arrives 
to the hand of the President, who unfolds it and declares 
the result. I was required on my trial, to reduce the 
questions I propounded on the cross-examination of wit- 
nesses, to writing, before they would be accepted and con- 
sidered by the Court. This requirement was in accord- 
ance with the rules and practice of Courts Martial ; and 
may be regarded as proper in order to prevent confusion. 
On the trial of officers this rule is generally adhered to; 
and w^hen a common soldier is on trial, the Judge Advo- 
cate usually reduces his questions to writing for him. It 
is also the practice of Courts Martial to allow no indivi- 
duals to be examined as witnesses who have been present 
during the examination of a previous witness on the same 
trial. To enable the Court to preserve this rule, and in 
order to put the accused in possession of a perfect knowl- 
edge of the character of the testimony which is to be ad- 
duced against him, it has been established as a rule, that 
the Judge Advocate shall, on delivering a copy of the 
charge to the accused, furnish him with the names of the 
persons whom he intends to adduce as witnesses; and 
none but those whose names have been furnished to the 
accused will be allowed to be examined. The accused 
is also required, at the opening of the Court on the first 
day, to furnish to the President the names of his witnesses, 
that they maybe excluded during the examination of oth- 
er witnesses, or to take care himself that none of them 
are present ; for the Court will not permit him to call and 
examine any who have been present at the examination 
of others. So far as this rule became applicable on my 
trial, it was adhered to. For the trial of officers and sol- 
diers of the military forces of any country, a Court Mar- 



THE COURT MARTIAL. 103 

tial constituted of officers of the same forces, has strong- 
er guards against oppression and unjust condemnation, 
than the tribunals of the civil law. A Court Martial is 
instituted, in every case, for an inquiry and adjudication 
of specific matters ; and when that is done, the tribunal 
is at an end. The officer who is a member of a Court 
Martial to-day, to-morrow may be arraigned himself be- 
fore a similar Court, of which the officer on whose con- 
duct he may have just passed, might be a member. For 
this reason it is not to be supposed that any officer would 
be likely to vote for the application of a principle, or rule 
of practice he would not be willing to have applied to 
himself. The common soldier, in a certain sense, is 
the tool with which the officer operates; the stock on 
which he speculates for military fame and glory. Hence 
if the common soldier be put on trial, though he is not 
tried by his peers, the interest which every officer wil. 
feel in his preservation, must necessarily render him se- 
cure from oppression and wrong. But, when a Court 
Martial is resorted to for the trial of a strapger or foreign- 
er, it is without these guards to protect him ; and he is 
left open to the greatest violence and wrong.] 

The President then asked the prisoner, General Suth- 
erland, whether he said guilty or not guiltij to the Charge ? 
and he answered, "not guilty." 



REPORT OF THE TESTIMONY. 



John Prince, (1.) Lieutenant Colonel in the Militia of 
the Province of Upper Canada, being duly sworn on the 
holy Evangelists, states to the Court : 

That on (he fourth day of March, instant, he was re- 

(1.) This John Prince, who has become of late somewhat noto- 
rious on this continent as the violator of the rules of civilization 
and the common rights of man, is said to be a native of England. 
He was born, some forty-five or fifty years since, at Quedgley Green, 
in the county of Gloucester. At an early age he was apprenticed 
to an Attorney, and upon being admitted to the bar, commenced 
practice as an Attorney at Cheltenham, with one Stafford as a part- 
ner. Subsequently, Prince procured himself to be appointed Clerk 
to the Commissioners of Roads. By means of this office, as it is said, 
he got into his possession two or three thousand pounds of the pub- 
lic funds, with which he decamped, and came to the United States. 
He first landed upon our shores at the city of New- York ; and from 
thence he pursued his way into the interior until he arrived at De- 
troit, in Michigan, where he put himself down, with a view of ma- 
king that place his permanent residence, and embarked in the busi- 
ness of smuggling. But apprehending that he might be looked af- 
ter by the Commissioners of Roads, whose coffers he had defraud- 
ed, and observing the ready intercourse and communication which 
existed between the city of New-York and Detroit, he deemed him- 
self unsafe at the last mentioned place ; and left that, and crossed 
over to the Upper Canada shore, and stowed himself away on a 
piece of land in the wilderness of the Western District of that Pro- 
vince. There he remained safe and secure for a number of years, 
engaging himself principally in smuggling ; for which his natural 
disposition for duplicity and scheming peculiarly fitted him. Sub- 
sequently becoming acquainted with a lady residing in the part of 
the Province where he was located, who was in possession of a con- 
siderable amount of money and property, but no character, having lost 
her claim to the latter, by certain derelictions from the principles and 
rules of chastity; to her he married, and by adding her effects to 
his plunder, he was enabled to go back to England and make a com- 
promise with the defrauded Commissioners of Roads, and still hold 
the possession of a considerable amount of property. Upon his first 
arrival at Detroit, and during his early residence in Upper Canada, 
Prince professed himself a Democrat in principle ; and in Canada 
he adhered to the Radical Reform party. Soon after be had effect- 
ed a compromise with the Commissioners of Roads in England, he 
put himself up as a candidate for a seat in the Provincial Parlia- 
ment of Upper Canada, to represent a county of the AVestern Dis- 
trict, and by the votes of the Radical Reformers obtained an elec- 



TESTIMONY OF LT. COL. PRINCE. 105 

turning from Gosfield, in the Western District — was tra- 
velling in a sleigh along the shores of Lake Erie on the 
Canada side, and at about half past four o'clock, P. M. he 
saw at a great distance two objects on the ice, which he 
thought were men — that he was in company with Captain 
Girty and Mr. Haggerty ; and they had been with him on 
Pele Island on the preceeding day, with the forces under 
the command of Colonel Maitland — that in about twenty 
minutes after he had seen the objects, he saw that they 
were men coming from the Michigan shore towards the 
Canada ^Aore— that he conceived them to be spies, and 
determined to intercept them if possible — that having met 
some people who accommodated him and Mr. Haggerty 
with fresh horses and sleighs, (2.) Mr. Haggerty got into 

tion. Immediately after taking his seat in the Provincial Parlia- 
ment, however, he abandoned his reform principles, and joined the 
ultra loyal party who sustained the measures of Sir F. B. Head 5 
and upon the first movements of the Revolution which took place in 
that Province, in 1837, he was found among the most active of the 
supporters of the British Colonial authorities. To enable him effi- 
ciently to act in such respect, Sir F. B. Head commissioned him as 
a Justice of the Peace, and as a Lieutenant Colonel in the Militia 
of the Province. 

Upon the convocation of the Provincial Parliament of Upper 
Canada, in 1837, by Sir F. B. Head, Prince took his seat, and during 
that memorable session, procured a law to be passed, authorizing 
him to practice as an Attorney, Solicitor and Barrister, in the seve- 
ral courts of law and equity of the Province. 

The residue of the history of this man is too well known to need 
recounting in this note. 

(2.) On the morning of the 4th of March, 1838, 1 had proceeded 
from Detroit down to Gibralter, a small village or landing place, 
situated at the head of Lake Erie, nearly opposite to Amherstburgh 
in Upper Canada, and at the distance of 18 or 20 miles from De- 
troit. My intention had been, on setting out from Detroit, to pro- 
ceed to Sandusky in Ohio, by the way of Gibralter, Monroe and 
Perrysburgh, in order to make an effort to recover property of which 
I had been robbed, and to meet those who had been guilty of the 
robbery, who I had been informed had gone to Sandusky by that route. 
But, at Gibralter. I was advised not to go on by the way of Perrys- 
burgh j and in accordance with the advice I had received, I changed 
my intention, and resolved to proceed across the ice, which then co- 
vered the waters at the head of Lake Erie, on a righi line to San- 
dusky, whereby I could have gained Sandusky in travelling a dis- 
tance of only about one-third of that by the way of Perrysburgh ; and 
in advance of the persons of whom I was then in pursuit. The 
roads were most intolerably bad, and this was one of the facts which 



106 TESTIMONY OF LT. COL. PRINCE. 

one of the sleighs and witness into the other — that he had 
previously prevailed on Captain Girty, who was unwell 

recommended to me the measure of crossing npon the ice, which I 
was at the time informed I could do only on foot, as the ice was 
known to have been hroken and separated at the head of Lake Erie, 
on a line from Point Mouillee in Michigan to Hartly's Point in Up- 
per Canada j and this would prevent the crossing of teams, as it was 
supposed, though it allowed travellers on foot to get over. At about 
15 minutes before 32 M., I set out on foot from Gibralter, accompa- 
nied only by a single individual, (a lad some sixteen or seventeen 
years of age,) and proceeded on the ice down along the shore of 
Michigan, until I arrived at the place where the ice had been bro- 
ken and separated, (which was in the neighborhood of Point 
Mouillee,) but, there I found that an east wind had closed it again so 
as to render it not only convenient for persons on foot, but also for 
teams, to get over. From thence I travelled in a south-easterly direC' 
Hon, (that being the course for Sandusky,) and had gained the dis- 
tance of four or five miles below the fracture in the ice, (which had 
brought me very near a schooner, that was there frozen in the ice, 
and in the neighborhood of the Island called the West Sister, which 
was then fairly within my view,) when on turning my eyes to the 
rear, I perceived two objects on the ice which I conceived to be in- 
dividuals travelling on foot in the same direction I was then pursu- 
ing. After they had crossed the fracture in the ice, however, and 
had come on some distance towards me, I discovered that the ob- 
jects I had before noticed, were not single individuals on foot, but 
two sleighs, and that they were followed by a third, close in the 
rear. But, as I had observed that they were pursuing the same 
route travelled by myself, I did not suspect that they intended harm 
to me, nor was I so advised until the two sleighs in advance had 
come up to within about fifty yards, and a number of men they con- 
tained, armed with muskets, swords and pistols, got out and com- 
manded me to halt ; and their leader, who was this John Prince, 
declared me to be a prisoner. 

I had no means of conceiving, nor did I ascertain why I had been 
thus pursued and captured, until after my trial at Toronto. Subse- 
quent to the trial, and while I was being conveyed as a prisoner 
from Toronto to Kingston on board a steamer, I became acquainted 
with a Lieutenant of Her Majesty's service, who informed me that 
he was on duty at Amherstburgh at the time of my capture ; and he 
stated to me " that immediately after my setting out from Gibralter, 
an individual who had acted as a spy for them, came over from 
Gibralter to Maiden, and made it known to Colonel Maitland, who 
commanded at that post, that I was travelling on the ice towards 
Sandusky in Ohio, and that being on foot I might be readily pur- 
sued and taken by a party in sleighs ; that Colonel Maitland de- 
clined sending a party from Maiden for the object suggested, but 
directed the individual making the communication, to proceed down 
along the Canada shore, where he would be likely to meet some of 
the parties coming up from Pele Island, (where the British forces 



TESTIMONY OF LT. COL. PRINCE. 107 

and his horses tired, to remain where he was (3.) — that 
they drove on, witness first, Haggerty next — that when 
witness came within about a hundred yards of the pris- 
oner, who had another person with him of the name of 

, he desired the man who drove him to stop and 

take charge of his, witness's pistols — that he left in the 
sleigh a tomahawk which he had, and advanced towards 
the prisoner, following them and having his gun — that he 
desired Mr. Haggerty to follow with his gun also — that 
he was about Jlfty yards ahead of Mr. Haggerty when 
he hailed the prisoner and his companion, and desired 
them to halt — thai they did so, and the prisoner asked, 
" what do you wantV and said, " we are American citi- 
zens going about our own business^'' — that as witness ad- 
vanced, he recognized the prisoner — that he then said 
they were sorfie of the people he had been looking for, or 
words to that effect — that on their turning round he dis- 
covered that they had swords, and he advanced tow^ards 
prisoner and took his sword from him — that witness then 
desired Mr. Haggerty to demand the sword of the prison- 
er's companion — that Mr. Haggerty did demand it, and it 
was given to him (4.) — that witness then demanded of 

had been engaged with the Patriots the day before,) to whom he 
could make the facts he had communicated known, and that they 
might act upon them ; that the individual did so, and fell in with 
Colonel Prince, who fitted out the expedition by which I was pur- 
sued and captured." The party by which I was taken and carried 
off to Canada consisted of Colonel Prince, Major Rudyard, Captain 
Girty, Lieutenant James, and Lieutenant Wright, together with 
some twelve or fifteen soldiers, constituting as many persons as 
could be crowded into three sleighs. 

(3.) Girty did not remain very far behind in the pursuit, as it 
will be perceived by an examination of the report of his testi- 
mony, but proceeded on after me as fast as his horses could 
draw his sleigh, then loaded with armed persons, while Prince, with 
his fresh teams, had taken the lead. On leaving the Canada shore, 
as I was informed by Girty and some others of the party, they 
drove directly towards the shore of Michigan, with the hope of tak- 
ing me before I could have got down to the fracture in the ice 
near Point Mouillee ; but when they had arrived near the Michi- 
gan shore, they discovered that I had crossed the fracture in the 
ice, and gone off in a south-easterly direction, and they, accordingly 
changed their course to the same direction and pursued until they 
came up with me. 

(4.) After resigning my command with the Canadian Patriots I 



lOS TESTIMONY OF LT. COL. PRINCE. 

both if they had any fire-arms about them — that they as- 
sured him that they had not, when witness said he would 
be satisfied with that assurance, and would not search them 
— that he told them to consider themselves as his prison- 
ers, and to march before him to the sleighs which were 
at some distance (5.) — that Mr. Sutherland then charged 
the witness with having taken him within the American 
waters — that witness told him to look at our shore, and at 
the American shore from whence he came, and he told 
him to bear in mind that they were about a mile and a half 
from the Canada shore, while they were zhoui five or six 
miles from the Michigan shore (6.) — that the prisoner then 

had packed up my arms and field equippage, and left them at Tole- 
do in Ohio ; and I had kept no kind of arms in my possession ex- 
cept a brace of pocket pistols "which belonged to a friend who re- 
sided in Detroit. These I returned to the owner, while there, and 
left Detroit on the morning of the 4th of March, with no kind of 
weapons for ofi"ence or defence. At a public house near Gibralter, 
I was shown a couple of swords which were my property, and which 
had been left there by me, at a time previous, on account of their 
futility as weapons for the field. But, as the swords were of use 
to ornament a militia ofiicer, and might be sold for some amount 
of money, the lad whom I had in company proposed that we should 
take them along — to which I consented ; and one of these 
swords, which I carried in my hand, was all the weapon I possess- 
ed when come upon by Prince and his party. The lad who accom- 
panied me carried the other in his hand, which was taken from him 
in the manner as testified to by Prince, (by one of his party, whose 
name I presume was Haggerty,) but not until the third sleigh had 
come up, and we had gone back to the sleigh which stood in the 
center, into which we were ordered to place ourselves. After the 
the sword had been taken away from my companion, I produced the 
one I carried from under my cloak, and asked the man " if he 
wished it?" He replied — " Yes," and I gave it to him. Prince, at 
the time, was at the advance sleigh, and did not know that I had 
a sword in my possession until I had given it to his man. So, he 
did not take my sword from me. 

(5.) On coming up with myself and companion, Prince and his 
party readily perceived that we had no arms, other than such as 
might be worn by our sides or carried in our pockets. They were 
armed with muskets. Prince did not allow myseli or companion to 
come nearer than forty or fifty yards of him, before the third sleigh 
with Girty, had come up ; thus keeping himself safe from harm, 
by sword or pistol, until we were surrounded by a body of men 
armed with muskets. It was then, that it was proposed by some of 
Prince's party to search us, when Prince said, " that it was not ne- 
cessary." 

(6.) See notes to the answers of Prince to the 18th, 19th and 23d 



TESTIMONY OF LT. COL. PEINCE. 109 

Stated that he thought he had a right over any of the wa- 
ters of Lake Erie, or words to that effect — that he then 
desired the witness to take him before his commanding 
officer, and he expressed a hope that he would not be ill 
used by them (7.) — that witness told him he should 
be taken before the commanding officer, and should not 
be ill treated — that witness wished the Court distinctly to 
understand that the ylace ivhere he captured the Prisoner, 
was not above a mile and a half from the Canada shore, 
and it was on that part of Lake Erie which belongs to the 
British government — that he also wishes the Court dis- 
tinctly to understand that it was at least five miles from 
the American shore- — that witness also wishes the Court 
to understand that the swords vjere both very efficient 
sivords, (8.) and they wore them as military men usually 
do — that witness had seen Mr. Sutherland at Detroit 
some time previous to that day, about six weeks previous, 
and a few days after the capture of the schooner Ann of 
Detroit — that he had then a sword by his side, which 
witness believes to be the same which he took from him 
(9.) — that he also wore a military dress with a tri-colored 

questions upon his cross-examination, and 1st note to the answer of 
Girty to questions by the Court. 

(7.) Having captured me, and taken me towards and within a 
mile of the Upper Canada shore, it was then proposed by some of 
the party that I should be executed there upon the ice, by being 
shot. Hearing this proposition, I remarked to the officers, " that I 
had supposed them to be civilized people" — and told Prince " that 
for his own credit and the reputation of the people of his coun- 
try, I hoped he would not allow me to be murdered, and ask- 
ed him to preserve me from harm until I should be taken before his 
commanding officer. Some conference was then had between Prince 
and his officers ; after which he told me " that I should not be ill 
treated, and that he would take me immediately to his commanding 
officer at Fort Maiden." Iwas since informed by an individual 
who was of Prince's party, " that two of the officers were for 
shooting me upon the ice, but that the three others were opposed 
to the measure and prevented it — and that Prince was not num- 
bered with the three." 

(8.) The swords were French rapiers j but were never worn by 
either myself or companion. I could not have worn the one T car- 
ried, if I had desired, for the reason that the belt attached to it was 
not sufficient to girt my waist. 

(9.) The sword which I had in my possession at the time of my 
capture, was never worn by me in the city of Detroit. Neither 

10 



1}0- TESTIMONY OF LT. COL. PRINCE. 

cockade on his hat — that after Mr. Sutherland became the 
witness's Prisoner, they proceeded in sleighs to Maiden, 
where witness placed him in charge of the Honorable Co- 
lonel Maitland, then commanding there. 

That on the following day, being Monday, and Col. 
Maitland having expressed his determination to send both 
the Prisoners down to Toronto ; and Mr. Sutherland hav- 
ing the preceding day expressed a wish to make a com- 
munication to them ; (10.) witness arranged with Colonel 

Prince, nor any other person ever saw me at Detroit with a sword 
by my side. Though I did there wear a military undress and a 
tri-colored cockade. [I objected to Prince's testifying to any mat- 
ters which had occurred within the United States — but my objec- 
tions were overruled by the court.] 

(10.) I never expressed to any one a wish to make a communica- 
tion to Prince, Lachlan, Girty, or any other person. Immediately 
after my capture I was taken to Fort Maiden and placed in the 
guard-room, where I remained a short time, and was then taken to 
the officers' guard-room, before Colonel Maitland, who was the mili- 
tary commandant of the post. A number of other officers were 
present, by two of whom my person was searched, and my money, 
as well as every thing of value found in my possession, was taken 
from me. Co'onel Maitland treated me with a considerable degree 
of courtesy, and when I complained to him that I had been kidnap- 
ped and brought off from my own country, he stated to me " that 
he was but the military commandant of the post, and could not act 
at discretion, but as such military commandant, must send me im- 
mediately to Toronto, to the Lieutenant Governor." While in thejof- 
ficers' guard-room, some of the British officers present abused me 
with invidious observations in relation to the character of my 
country, which I was inclined to repel; but another of the officers 
present pulled me by the sleeve and suggested that I should not re- 
gard their observations — and I desisted to reply. After this, I was 
sent back to the guard-room, where, in the evening, I was called 
upon by a clergyman, resident at Amherstburgh, [it should be 
understood that iWa/tfe/i and .y?7?iftersf6wrgA, as mentioned in these 
proceedings, are names of but one place — the fort and the town- 
ship is called Maiden, the village Amherstburgh,] to whom I slated 
that it was my desire to be detained at Amherstburgh a few days, 
so that I could make my case known to my friends in Michigan, 
as it might be important for me to do so in case I was to be put up- 
on trial. He advised me to see Colonel Maitland, and make 
the request to him in person. In accordance with his advice, I pro- 
cured one of the officers of the 32d Regiment to inform Colonel 
Maitland that I desired to see him at the guard-room where I was 
confined. Soon after this I was sent for, and taken again to the 
officers' guard-room, where I was met by an officer of the British 
army who said to me. " that Colonel Maitland was an invalid and 



TESTIMONY OF LT. COL. PRINCE. IJl 

Maitland that the Prisoners should be brought befo're him, 
the witness, Major Lachlan, and Captain Girty, all of 
whom were magistrates in the Western District^ — that 
Mr. Sutherland was in consequence brought before them 
about mid-day, in a room in the garrison where any body 
who pleased was allowed to enter ; and the room was filled 
with military men and civilians (11.) — that the Prisoner, 
Mr. Sutherland was brought in first, and alone, apart 
from his companion ; witness then reminded him of his 
having expressed a wish to make a communication to 
them ; witness stated that he and his brother magistrates 
were ready to receive any information he may choose to 
give, at the same time reminding him that he need not 
say any thing which would criminate himself (12.) — that 
he said he was aware of that, and that he would frankly 
tell us all he knew (13.) — that he then made a voluntary 

unable to come up to the guard-room j and had sent him to receive 
any communication I might have to make." This officer was one 
of those who had abused me upon my being first brought to the of- 
ficers' guard-room, and I could but conceive that a request through 
him would be of little avail, and so I replied, "that I had no com- 
munication to make," and he ordered me to be taken back again to 
the guard-room. Some time after, another gentleman, a field offi- 
cer in the British army, came to me and said, " that he understood 
I had wished to make a communication j" and stated "that if I had 
any thing to communicate, I might make it to him, and that he 
could perhaps turn it to some advantage for me ;" to him I also re- 
plied, " that I had no communication to make," Further than this, 
there was nothing said to me in relation to any communication eith- 
er at Amherstburgh, or elsewhere. 

(11.) The room in which the examination was had, was the of- 
ficers' guard-room, which was not permitted to be entered but by 
officers ; and there were no persons present at the examination, 
who were not of the military. 

(12.) When taken before Prince, Lachlan and Girty, I was told 
by Prince, " that they were three justices of the peace of the West- 
ern District of Upper Canada, and that I was brought before them 
for examination." It is, also, true that Prince did remind me, 
when he commenced the examination, on that occasion, " that I 
need not say any thing that would criminate myself." 

(13.) I had not desired an examination before Prince and his 
brother magistrates; nor had I done or said any thing to induce 
the measure ; and when I was brought before them, I then thought, 
as I still think, that the examination was had solely with a view to 
elicit some acknowledgiuent or admission from me which might be 
used against me upon a trial which they supposed I was soon to 



112 TESTIMONY OF LT. COL. PRINCE. 

Statement which witness heard throughout — after he, the 
Prisoner, had made this statement, witness reduced the 
substance of it to writing in his presence (14.) — (the 
witness also produced a newspaper, which newspaper he 
handed into the Court, it being the "Detroit Morning 
Post," dated the 12th of January, 1838, the paper con- 
taining Mr. Sutherland's despatches and proclamations) 
(15.) — that when witness had finished the statement above 

be subjected to. Understanding the examination to be had for such 
purpose, I resolved to give them what they desired, to their own 
satisfaction— but in no way that should be of less service to myself 
than to them. So I told them " that I would frankly tell them all I 
knew in relation to those matters, in which I had been concerned f 
and in my answers to the questions put to me, I fully and freely sta- 
ted the part I had had in the matters about which they inquired. 
But, whenever the question was such as to require an answer that 
might be made testimony against me, with my answer I took 
care to give a statement of such matters as would destroy any 
force the answer might have as testimony against me — or of 
some fact that should weigh equally in my favor. Thus, while 
I admitted my connection with the Canadian Patriots, and a 
participation in their movements, I stated matters which went 
to deny every fact on which a trial could be predicated, under the 
provisions of the law of the 12th of January, of the enactment of 
which I had been made acquainted ; and on the examination I 
mentioned the names of no persons except Van Rensselaer and 
Mackenzie. 

(14.) During my examination. Prince drew up a paper which 
he called a record of the examination ,• and after it had been 
concluded, he read it to me. It contained only a brief state- 
ment of a few of the matters I had related, and those only 
which might be used as testimony against me. After read- 
ing the same. Prince asked me "if it was correct?" I re- 
plied, " that I had stated the matters the paper contained, but 
with many others, which were omitted." To which he replied, 
'• that he Avas aware of the fact, but to write out all I had said would 
require too much paper and ink to be used at that time ;" and as 
he did not request me to sign the paper, I took no furtlier excep- 
tions to the imperfections it contained. I knew that the paper 
Prince had drawn up, without my signature, could not be read in 
any court claiming to act upon legal principles and rules, as evi. 
dence against me ; and I knew as well that if he or any other of 
the persons present at the examination, were examined as wit- 
nesses upon any trial on which I might be put, to prove my admis- 
sions, I could show by them that all the admissions I had made, 
(taken together,) went to exculpate, and not to criminate myself. 

(15.) These were certain despatches to General R. Van Rensse- 
laer, sent from Bois Blanc Island, with the proclamations issued 
by me at that place. 



TESTIMONY OF LT. COL. PRINCE. 113 

mentioned, which he now holds in his hand, he read it 
deliberately over to the Prisoner, and asked him if it was 
substantially true — he said it was. 

Here the witness delivered the paper to the Judge Ad- 
vocate, who read it, when it was referred to the Appen- 
dix. (16.) 

(16.) I have made every exertion, possible for me, to procure a 
copy of this paper, but have failed ; as will be shown by the fol- 
lowing correspondence : 

Copy of a letter to the Lieutenant Governor. 
To His Excellency Sir George Arthur, Lieut. Governor, &c. 

Thomas Jefferson Sutherland, a citizen of the United States of 
America, now detained a Prisoner by the Government of the Pro- 
vince of Upper Canada, would respectfully represent to your Ex- 
cellency, that it is his intention to present the circumstances of his 
capture and detention to Her Majesty the Queen of Great Britain 
and Ireland, to the end of relief, and that he may be liberated from 
his present condition, and permitted to return to his country and 
friends. Wherefore, he solicits your Excellency to cause to be made 
and delivered to him a cer^i^ec? copi/ of all the proceedings taken 
against him by and before a Militia General Court Martial in this 
Province, with, his defence made before said Court Martial ; and 
copies of the Laws or Statutes under which such proceedings were 
had, that he may lay the same, with his representation, before Her 
Majesty by an early day. 

Very respectfully submitted to your Excellency. 

TH : J. SUTHERLAND. 
Home District Gaol. \ 
23d April, 1838. ' 5 

Copy of letter from J. Joseph to Sheriff Jarvis. 

Government House, > 
26th April, 1838. 5 

Sir — 'I am commanded by His Excellency the Lieutenant Gover- 
nor, to request you to be so obliging as to acquaint T. J. Suther- 
land, a convict in the gaol of this city, under sentence of transpor- 
tation, that his Excellency has received his memorial, requesting to 
be furnished with a '* certified copy of all the proceedings taken 
against him by, and before, a Militia General Court Martial in this 
Province, witli his defence made before said Court Martial — and 
copies of the laws or statutes under which such proceedings were 
had — that he may lay the same, with this petition before Her 
Majesty, by an early day." In reply to this request His Excellen- 
cy begs you to inform the Prisoner, that a copy of the Trial, and 
the documents connected with it, has been transmitted by His Ex- 
cellency, to the Secretary of State for the Colonies. 
I have the honor to be sir, 

Your obedient humble servant. 

Mr. Sheriff Jarvis. J. JOSEPH. 

The above was put into my hands by Mr. Sheriff Jarvis. 

10* 



114 TESTIMONY OF LT. COL. PRINCE. 

Witness here, also, delivered to the Jadge Advocate the 
newspaper above mentioned, who read the publications 
stated in the declaration of Mr. Sutherland, and referred 
it to the Appendix. 

That witness also recollects a statement made by Mr. 
Sutherland when he was taken prisoner, which witness 
desires may now be taken down — that after Mr. Suther- 
land stated that " they were American citizens going 

Subsequently, and while I was still a prisoner in the hands of the 
British Government, I addressed a letter to Colonel Fitz Gibbon, 
who was Judge Advocate of the Court Martial by which I was 
tried, requesting him to procure for me, " copies of the orders 
of Sir F. B. Head, then Lieutenant Governor, ordering the 
the Court by which I was tried, with copies of all the proceedings 
before said Court Martial on the 1st, 2d, and 3d days of its sittings, 
with a copy of a paper which was produced before the Court by Co- 
lonel Prince, purporting to be a record of an examination of myself 
before three justices of the peace at Amherstburgh in Upper Canada ; 
together with copies of the proceedings of the said Court, subse- 
quently to the closing of the testimony, excepting my defence." In 
reply I received the following : 

Copy of a letter from Colonel Fitz Gibbon. 

Toronto, 7th November, 1838. 
Sir — On the 5th inst. I addressed a short letter to you acknow- 
ledging the receipt on that day, of your letter to me dated the 11th 
ultimo. 

On the 6th I applied, through the civil Secretary of the Lieuten- 
ant Governor, for His Excellency's leave to give you a copy of such 
parts of the proceedings of the Court Martial as you desired, and 
yesterday I received an answer from the Secretary of which the 
following is a copy : 

I remain, Sir, your Obedient Servant. 

JAMES FITZ GIBBON. 
Thomas Jefferson Sutherland, Esquire, 

State Prisoner, Quebec. 
(copy.) 

Government House, ^ 
6th Nov. 1838. $ 
Sir— Having laid before the Lieutenant Governor the letters of 
Thomas Jefferson Sutherland, which you handed me yesterday, I 
have received His Excellency's commands to inform you, that the 
request of that person for a copy of the proceedings of the Court 
Martial held upon him at this city cannot be complied with, as 
it is unusual to grant copies of proceedings in such cases. 

I return you the letter you gave me ; and have the honor to be, 
Sir, your most obedient humble servant. 

(Signed.) JAMES MACAULEY. 
James Fitz Gibbon, Esquire. 



CROSS-EXAMINATION OF LT. COL. PRINCE. 



115 



about their business," witness remarked that Americans 
had no business there in these times, when Prisoner re- 
plied, that *' hewas goi?ig to Lower Sandusky to endeavor 
to intercept some persons who had stolen some money from 
him and his trunk and clothes, ivhile he was in Monroe'^ 
(17.)— that witness then remarked that he was coming in 
a direct line from the American to the Canadian shore ; 
and witness here adds, that he was then at least one mile 
at this side of the line leading to Sandusky, and his steps 
were directed towards the Canada shore (18.) — that wit- 
ness adds, that a line from where the Prisoner was taken 
to Sandusky, would run in about a south-westerly course, 
as far as he can judge, and that they, the prisoners, Avere 
going in a course about south-easterly (19.) he thinks, and 
if they had pursued the course they had been travelling, 
they would have been on the Canada shore in about half 
an hour. Witness states positively that the Prisoner is 
the same person he saw at Detroit, and whom he took 
Prisoner on the ice. 



Cross-Examination of the witness Prince, by General 
Sutherland. 

\st Question. Were you, at the time I was captured, 
in a certain degree of excitement ? 

Ansiver. I was excited in a little degree ivith pleasure 
at finding a man ivhom I had desired to meet, I was ex- 
cited loith pleasure, but nothing else. 

[Prince never approached nearer to me, at the time of 
my capture, than the distance of fifteen or twenty paces. 
He appeared to be very much agitated ; and when I walk- 
ed towards his sleigh, he placed himself on the opposite 

(17.) I made no such statement as this at the time of my capture. 
It was made at the examination on the day following. 

(18.) If I had been travelling towards the Canada shorC; why 
did they not wait till I had arrived there ? 

(19.) It is true that I was travelling in a south-easterly direction ; 
and that direction was a right line from the place from whence I 
started to Sandusky, as any one may ascertain by an examination 
of a map of that part of the country. It will also be perceived 
by an examination of such map, that if an individual be placed up- 
on the ice, (or on the water,) at any spot at the head of Lake Erie, 
such individual would never get into Canada by pursuing a south- 
easterly direction ; the shore of Canada being to the north. 



116 CROSS-EXAMINATION OF 

side to that which I approached, and kept himself so that 
his horses were between us ; and remained so until I had 
gone to another sleigh, a few rods in the rear, into which 
I got, and was takea to Maiden. There was no exhibi- 
tion of pleasure marked in the countenance of Prince ; 
and his agitation could not have been from fear — as the 
number of his party forbade that. But, from his subse- 
quent conduct, I am led to suppose it resulted from his 
meditating my immediate assassination.] „ 

2^ Question. Might you not have mistaken what was 

said by , at the time of the capture, and after, for 

what had been said by me ? 

Ansioer. Certainly not. said nothing that I 

heard except his asking me whether he was bound to de- 
liver his sword to Haggerty, when he demanded it by my 
order ; and I have no recollection of any thing else said 
by on that occasion. 

3^ Question. Did , at the time of the capture, 

say that we were on American ground? 

Answer. Not in my hearing. I never heard him say so. 

^th Question. Was it not Sandusky instead of Lower 
Sandusky, that I named as the place that I was going to ? 

Answer. No. Lower Sandusky was the place named, 
I am certain. 

[This question was not material. It was put merely to 
befog the witness, who had shown a determination to an- 
swer no question I should put to him with any regard to 
truth. At the time of my capture, I only knew of Sandusky. 
Of Lower Sandusky I had never heard, but am now in- 
formed that Portage was once called Lower Sandusky.] 

5th Question. When captured, did I not tell you that 
we were going to a schooner, that was frozen in the ice 
near by, for the night ? 

Answer. He did not say so when captured ; hut he said 
so in about tiventy minutes after ; and I observed upon the 
improbability of the act, becaitse the schooner had been 
stranded in the ice all the ivinter, a long distance from the 
shore^ and ivithout any person^ and loithout any fuel on 
board. 

Qth Questio7i. How did you know that there was neither 
persons, nor fuel on board ? 



LT. COL. PRINCE. 117 

Ans2mr. I never stated that I did know that there was 
no persons or fuel on hoard the schooner ; but I had seen 
her in the same position, blocked up in the ice, about a 
month before, and I took it for granted that there were 
neither persons nor fuel on board of her ; and I believe 
there were not. 

1th (Question. Where did you first see the schooner in 
question ? 

Ansioer. f first saw the schooner in the place where 
she was when I captured Mr. Sutherland ; and that place 
is within the Province of Upper Canada, and not within 
the loaters of the United States. 

[This schooner, spoken of by the witness Prince, lay 
frozen in the ice, at the time of my capture, at a distance 
of about two miles and a half above the West Sister, and 
within a distance of from tiao to three miles, north from 
the main shore of Michigan, and all of seven miles 
within the United States ; the boundary line, as it has 
been settled between the government of the United States 
and Great Britain, running between the Islands called the 
Middle Sister and the East Sister.] 

Sth Question. How far was I from the schooner at 
the time of my capture ? 

Ansiver. Within half a mile. 

9th Question. Did I not say to you at the time, that I 
supposed the schooner was within the lines of the United 
States? 

Answer. I do not recollect any thing of the kind being 
said. It certainly was not said to me. 

10th Qiiestion. How near were you to the schooner the 
first time you saw her ? 

Answer. I was on the main land, travelling on the Ca- 
nada side. 

[I was sent off for Toronto, the next day after my cap- 
ture. From Maiden, our route was down the shore of the 
lake for some fifteen or twenty miles. As we travelled 
on the edge of the ice, I took the occasion to look for this 
schooner, as we came near opposite the place of my cap- 
lure, when I observed that the schooner was so far distant 
from the Canada shore, that from thence nothing could be 



118 CROSS-EXAMINATION OF 

seen of her but a speck of the pointed masts ; and I called 
this fact to the attention of a number of the men belong- 
ing to the escort, who were of the party by which I had 
been captured; and who then agreed with me, that I had 
been captured six or seven miles within the lines of the 
United States.] 

lltk Question. Was there more than one schooner fro- 
zen in the ice in the vicinity of my capture ? 

Answer. There ivas one about four miles below, close 
upon the Canada shore, in the township of Colchester, I 
believe ; and those were the only tivo I have seen frozen in 
the ice in that neighborhood. 

12th Question. Had there been any others, were you 
likely to have seen them ? 

Answer. If there had been any others in that vicinity, 
within three or four miles of the schooners spoken of, I 
should have seen them. 

V^th Question, Had the ice been broken, and separa- 
ted between the shores of the United States and Canada, 
above the schooner near which I was captured, a short 
time before ? 

Answer. It is impossible for me to say whether it was 
or was not broken and separated, not having been in the 
neighborhood at the time mentioned. I have been at 
Sandwich where I reside, and which is twenty miles dis- 
tant, or I have been at Toronto. 

\^th Question. How many miles below Amherstburgh 
were you when you first discovered me upon the ice ? 

Answer. As far as I can judge from memory, about 
nine miles. 

15th Question. How long a time, after first discovering 
me, was it before you pursued ? 

Answer. I think it ivas about tiuenty minutes. 
16th Question. Were you above or below me, (in re- 
ference to the current of the waters,) when you left the 
Canada shore, to pursue ? 
Ansiver. I was above. 

11th Question. Was I not within three miles of an 
island, lying in the vicinity of the schooner mentioned, at 
the time of my capture ? 

Ansiver. Certainly not, as far as I know. The only 



LT. COL. PRINCE. 119 

Island with which I am acquainted, is Bois Blanc, and 
that, I think, must be seven or eight miles, [the true dis- 
tance was seventeen or eighteen,] from the schooner near 
which Mr. Sutherland was captured. 

[Bois Blanc, (or White Wood Island,) is situated at the 
mouth of the Detroit river, directly opposite Fort Maiden, 
and the village of Amherstburgh, at a distance of only 
about six hundred yards from the Canada shore ; and can- 
not be seen from the place where I was captured.] 

ISth Question. To what point of land on the United 
States shore, was the place of my capture nearest? 

Answer. I am not sufficiently acquainted with the 
shore on the United States side of the water ; but I think 
the nearest point must have been at, or beloio, [or beloiv, 
was added in the record, by the direction of Col. Kings- 
mill — it was not so stated by Prince,] Gibralter in 
Michigan. 

[Gibralter, is directly opposite Bois Bla7ic Island; or very 
nearly so ; and is situated at a distance of from ten toff- 
teen miles from Hartly's Point, opposite which place, Gir- 
ty testified to be nearest the place of my capture. Prince 
put it " at two or three miles below."] 

19th Question. To what point of land on the Canada 
shore, was the place of my capture nearest ? 

Answer. There is no particular name that I can give 
to the point of land nearest to the spot where I captured 
Mr. Sutherland ; but I think it must have been about two 
or three miles below a place called Hartly's point. 

[At Hartly's Point, the boundary line, as settled between 
the governments of the two countries, runs within a mile 
and a half of the Canada shore ; while the distance across 
the water to the shore of the United States, from any 
place between two or three miles below that point, cannot 
be less than 12 miles, and may be as much as seventeen 
miles.] 

At this part of the cross-examination, the hour of 4 
o'clock, P. M., having arrived, the President adjourned 
the court till 10 o'clock of the next day. 



FIFTH DAY. 



Tuesday, March 20, 1S38. 



The Court met pursuant to adjournment. Present, the 
same members as before. The Cross-Examination of the 
witness Prince, by General Sutherland, continued. 

2()th Question. What is the distance between Amherst- 
burgh in Upper Canada, and Monroe, in Michigan ? 

Answer. What the distance is across the river, I cannot 
tell ; but I believe the distance between the shore of the 
United States, opposite Amherstburgh, and Monroe, is 
about twenty-five miles. 

21st Question. When you came up with me at the 
time of my capture, was I on the 7iorth or south side of a 
line drawn from Amherstburgh in Upper Canada to the 
nearest point on the shore of Michigan ; and if on the 
south, at what distance from such line ? 

Answer. It is impossible for me to answer the ques- 
tion without reference to a map ; but I believe the prison- 
er was not on the south side but on the east side of such 
line. 

It was here proposed by the Judge Advocate to produce 
J. Macauley, the Surveyor General of the Province of Up- 
per Canada, and to examine him as a witness for the pur- 
pose of establishing where the boundary line was which 
had been settled by the government of the two countries. 

To this General Sutherland objected, and insisted upon 
his right to proceed with the cross-examination of Prince. 
His objections were, however, over-ruled by the Court, 
and Mr. Macauley allowed to be called by the Judge Ad- 
vocate. 

/. Macauley, Surveyor General of the Province of Upper 
Canada, being duly sworn on the holy Evangelists, states 
to the Court : 

That certain sheets, which were then produced in 
Court, (being parts of a map, purporting to show the line 
established by the Commissioners under the Treaty of 
Ghent, as the dividing line between the United States and 
the Province of Upper Canada,) were found by him in his 
office, remaining there as part of the records thereof — 
that the line laid down on the maps or sheets produced, 



CROSS-EXAMINATION OF LT. COL. PRINCE. 121 

as the boundary line in the neighborhood of AmherStburgh, 
was not correct — that he knew this only by represisnta- 
tion. 

The Judge Advocate then stated to the Court that he 
had no further inquiries to make of Mr. Macauley; and 
he was directed to stand aside. 

General Sutherland insisted upon his right to cross-exa- 
mine this witness, but it was denied to him by the Court ; 
and he was not cross-examined. 

[Upon the production of the sheets, or drawings, which 
it was alleged would show the boundary line as settled by 
the commissioners under the treaty of Ghent, I at once 
perceived that the line as marked on those maps, would 
have placed me within the limits of the United States, 
even if I had been captured at the distance of a mile and 
a half from the Canada shore, at the place which Prince 
had testified he had taken me, and called the attention 
of the Court to this fact. It was then said by the members 
of the Court, that the line marked on the map was not 
correct, and Mr. Macauley asserted, " that he had under- 
stood that the line was erroneously laid down on the sheets 
before the Court." It was then, also, alleged by the Court 
and by Mr. Macauley, that the sheets produced were 
but copies of the original maps ; and they were thereupon 
immediately rolled up and withdra.wn from the Court. I 
insisted upon my right to examine the maps, as they had 
been introduced as testimony against me ; and to cross- 
examine Mr. Macauley in relation to them; yet, the 
Court refused me both, aild Mr. Macauley picked up his 
maps and walked off with them.] 

TJie Cross-Examination of the witness Przwce, was then 
resumed by General Sutherland. 

22d Question. To what point of land did the schooner 
spoken of as being within half a mile of the place of my 
capture, lie nearest ? 

Answer. The nearest land was the Canada shore ; but 
I am unable to designate the place for want of a name 
to it. 

23^ Question. Was it not within my power to have 
crossed over to the American side of the line, before you 
could have taken me ? 

11 



122 CROSS-EXAMIxNATlON OF 

Answer. I can only give an opinion on that point. I 
am of opinion that he could not. 

2^th Question. At what distance might I have seen you 
approaching me ? 

Answer. He might have seen us from the time we left 
the Canada shore in pursuit of him, if he had been on 
the look out. 

[At the time of my capture I was so far from the Cana- 
. da shore, that by me nothing distinctly could be seen on it. 
Neither tree, nor house could be discovered with the eye. 
The land held but one deep, dark and unvaried hue. When 
I first discovered Prince and his party, they were then from 
six to eight miles from the Canada shore, and yet so far 
from me that I mistook their character, and supposed their 
three sleighs to have been three persons walking upon 
the ice; and did not become aware that the objects were 
sleighs until they had crossed the fracture in the ice.] 

25^/i Question. Previous to my examination before 
you and the other two magistrates, at Amherstburgh, as 
testified to by you, did I tell you that I had any commu- 
nication to make to you or any one else ? 

Answer. He did not say so to me personally. 

[See what Prince testified to in his direct swearings in 
this respect.] 

26^A Question. At the time of the examination at Am- 
herstburgh, (the 5th inst.) as testified to, did I not say 
that I had been on Navy Island Avith Mackenzie and 
Van Rensselaer, and that I had left them in disgust, or 
because I was entirely dissatisfied with all their proceed- 
ings ; and that after I had left them, Mackenzie became 
one of my bitterest enemies ? 

[The object of this inquiry, and of the 27th, which fol- 
lows, was to rebut any proof which might be offered to 
establish that part of the Charge which alleged, " that I 
was joined with William Lyon Mackenzie and other sub- 
jects, with whom I was in arms against Her Majesty, af- 
ter the 12th of January," as well as to discredit Prince's 
pretended record of examination.] 

Answer. He certainly did say, at the time of the exa- 
mination at Amherstburgh, that he had been on Navy 
Island with Van Rensselaer and Mackenzie, and that he 



LT. COL. PRINCE. 123 

was dissatisfied or disgusted with Mackenzie. But he 
made no such remark with respect to Van Rensselaer ; nor 
do I recollect that he said that Mackenzie had become 
one of his bitterest enemies. He expressed dissatisfac- 
tion with Mackenzie, as to his military arrangement on 
the island. He also stated that Mackenzie had been 
plotting against him on Navy Island. 

27?A Question. At the time of the examination at Am- 
herstburgh, did I say that I had left Navy Island before 
the commencement of any hostile operations ? 

Answer. I have no recollection of his having said so. 
But he stated he was second in command under General 
Van Rensselaer; and I think he said he left the Island be- 
fore the destruction of the Caroline. I think he stated, 
also, that he left on or about the 2Sth of December. 

2Sth Question. Did I state to you on the examination 
at Amherstburgh, of which ^''ou have testified, that I had 
employed or joined persons or a party at Cleveland, Ohio, 
with whom I had come on to Gibralter ; or did I state to 
you that I had come on from Cleveland, in the same boat 
with a party of unarmed men who came at their own in- 
stances; and whose passage money was paid by citizens 
of Cleveland? 

Answer. I remember nothing that passed on that oc- 
casion, more than what is contained in the written state- 
ment before the Court. It is not an examination— hut it 
contains a voluntary statement of the Prisoner. 

[Prince had introduced this paper to the Court as the 
record of ^n examination before three Justices of the 
Peace of the Western District of U. C. ; and it had been 
denominated as such ; and when he found I was shak- 
ing its character by the cross-examination, he declined to 
answer further inquiries. Upon my insisting upon my 
right, (in accordance to their own laws,) to examine its 
credit as a record, the Court sustained him in his refusal 
to answer my inquiries, and Lieutenant Colonel Brown, 
put into his mouth the last sentence of his answer to my 
28th question.] 

29fA Question. At the examination, you have testified 
to at Amherstburgh, did I not make statements which are 
not contained in the record of that examination you have 
produced ? — Overruled. 



124 CROSS-EXAMINATION OF 

[Upon the presentation of this question it was objected 
to b}^ the Court. The members declared that there had 
been 7lo record of examination produced, though the pa- 
per, in fact, was headed as such ; that the paper w^as 
but a memorandum of admissions. I then insisted that 
as my admissions had been given, in part, as evidence, 
I had a right to have them in full. The question I pro- 
posed was, however, refused to be put, and the President 
threw it back to me. The conduct, and the remarks of 
the members of the Court were so extremely unbecoming 
in the matter, that some of the spectators hissed them. 
This induced the President and the Judge Advocate to 
threaten that the Court should be cleared ; and Prince 
seemed more vindictive than ever. I was determined, 
however, to push the inquiry, and endeavor to get out 
the facts, by varying the manner of the question.] 

30^A Question. Did I not tell you, on the examination 
at Amherstburgh, of which you have testified, that the pa- 
per that you then read me, though substantially cor- 
rect as far as it went, did not contain the explanations I 
had given — to which you then replied, " that it would take 
too much paper and time to put it all down;" or words to 
that effect ? 

Answer. I said nothing of the kind. But when I had 
read over the statement, I asked him if he wished to add 
any thing more ; and he stated that if he was aware of 
the exact position he stood in, with regard to us, he 
might be induced to offer his services to us ; which left 
an impressio7i icpon my mind that he was desirous of en- 
listing in our cause against the Americans. All this was 
said after the statement had been read oyer to him, by 
me, and I looked upon it as a conversational remark and 
therefore did not add it to the statement. 

[At the time of the examination, and ever afterwards, I 
denied the right of the British to put me on trial by their 
laws ; and when before the three Justices of the Peace at 
Amherstburgh, I argued against the right of their govern- 
ment to try me, as I had not, as I urged, ever received pro- 
tection from their laws. So, when Prince asked me, as 
he did, if I would make any further statements to them, 
I said, ^^ if I knew how I stood, I should, 'perhaps, be more 



LT. COL. PRINCE. 125 

at liberty to speak and to ansioer inquiries.''^ Meaning to 
be understood, (as I believe I was,) " that if I knew that 
they would not put me upon trial, I should be free to an- 
swer inquiries." All the rest of Prince's answer to my 
30th question, is fabrication and falsehood. Prince was 
aware that it was the Patriot portion of the audience who 
had hissed; hence he put forth that statement, (for it was 
no answer to my question,) as a hit upon their feelings.] 

^\st Question. Did you^ witness, or any other person, 
at the time of the examination at Amherstburgh, of which 
you have testified, ask me to sign the paper produced and 
alleged to contain a record of my statements at that time ? 

Answer. I did not ask him to sign it, nor did any oth- 
er person in my presence. In my practice as a magistrate, 
I generally take down the statements of prisoners and read 
over and explain them to them, and make a minute at the 
foot, of what they state, after having had the same read 
over and explained to them ; and I never ask them to sign 
them. 

32(i Question. On the examination at Amherstburgh, 
of which you have testified, did I not tell you that I had 
had no connection with the Patriots, since the middle of 
February, at which time I had resigned the commission I 
had held with them ? 

On the presentation of this question, it was objected to 
by a number of the members of the Court ; and. after some 
conversation between Greneral Sutherland, the Judge Ad- 
vocate, and the members of the Court, the Court was or- 
dered to be cleared ; and when it was again opened, the 
Judge Advocate rose and said to him, " that he was in- 
structed to inform him the Court had ruled that his ques- 
tion should not be put ; and that they had further ruled 
that if he proposed another question which they deemed ir- 
relevant, he should not be allowed to propose any more ques- 
tions for this witness to answer /" 

33^ Question. Has witness ever examined the sword 
taken from me at the time of my capture. If so, describe it ? 

Answer. I have examined the sword, and it is a taw- 
dry Yankee sivord. It is remarkably sharp at the end, 
sharper than swords generally are, and appeared to have 
been recently ground and whetted. The scabbard is 

11* 



126 CROSS-EXAMINATION OF LT. COL. PRINCE. 

washed or plated white, with devices on the outside ; and 
as he has asked me to describe it, I add that it is of so 
Jine a?id paltry a character, that 1 believe a British officer 
loould feel himself disgraced hy wearing it. [Col. Kings- 
mill then put in hia mouth,] — I consider it to be efficient 
to thrust with. 

34(fA Question. Did I not tell you at the time of the exa- 
mination at Amherstburgh, of which you have testified, 
that I had happened to have the sword in my possession 
by mere accident, and not with the design of using it for 
oifence or defence ? 

Upon General Sutherland proposing this question, the 
Court declared it to be irrelevant, and forbade his propos- 
ing any more questions for this witness to answer. 

It was then proposed by the Judge Advocate to show 
by Prince, that a committee of the Legislature of Michi- 
gan had visited the place at which General Sutherland 
had been captured, and that they had determined it to be 
decidedly within the territory of Upper Canada. 

To this General Sutherland objected, and rose for the 
purpose of stating his objections. But this was refused 
him, and the Court ordered to be cleared. On the Court 
being opened, General Sutherland was informed by the 
Judge Advocate, that the Court had decided, that the pro- 
posed examination of the witness Prince, should not be 
crone into : thousfh General Sutherland then consented that 
it might be. • 

[During the night, immediately after my capture, it had 
rained incessantly, and covered the ice at the head of 
Lake Erie, and in the vicinity of the place of my capture, 
with water to the depth of several inches. This must ne- 
cessarily have obliterated every vestige of my tracks on 
the ice, as I had travelled over such spots as were leastxo- 
vered with snow, and for much of the route, over places 
where the snow had been entirely driven off by the wind ; 
and from the rotten an.d broken state of the ice in the im- 
mediate neighborhood of the place of my capture, on the 
morning, persons could not have approached it, or have 
come nigher than at the distance of five or six miles. This 
fact was known to Prince; and he must have informed 
the Court, that I would be able to establish it, in case 



TESTIMONY OP CAPT. GIRTY. 127 

they went into an examination of the matter. See affida- 
vits of John Farmer and Benjamin Crittenden in this Ap- 
pendix.] 

Thereupon, the witness, Prince, was directed to with- 
draw, and he withdrew accordingly. 



Prideaux Girty, Captain in the Militia of the Pro- 
vince of Upper Canada, being duly sworn on the holy 
Evangelists, states to the Court : 

That on the 4th inst. (4th of March, 1838,) he was re- 
turning from Pele Island, with Colonel Prince and a man 
named Haggerty — that they were about a mile and a half 
from Big Creek, which is six miles below Amherstburgh, 
Colonel Prince said — ^Uhat there were two objects on the 
ice^^ — that they drove towards Amherstburgh, perhaps 
the distance of a mile — that they then discovered that the 
two objects were men — that he mentioned to Colonel Prince 
that he suspected they were persons wishing to avoid their 
guard, they (the men on the ice,) being entirely below the 
usual place of crossing, and recommended that they 
should pursue and ascertain who they were — that they 
then drove a short distance from the Canada shore, to- 
wards that of the United States; and then turned round 
and drove back agaip, having concluded to go up to An- 
derson's at Hartly's Point, to obtain fresh horses ; and as 
they, (the men,) were approaching the Canada shore they 
thought they, (the men,) would be upon it by the time they 
returned ; and that if they, (the men,) were not, that they 
might then pursue them ; but, that they found that they, 
(the men,) were so near the shore, and meeting two sleighs, 
Colonel Prince asked the men with them if they would go 
out with them, that is with him and Mr. Haggerty — that 
they went into the sleighs and drove off rapidly — that he 
for a few moments halted at that place with his sleigh ; 
and as he thought he discovered the persons were running 
he drove after them — that he M'as, perhaps, at the distance 
of a quarter of a mile in the rear — that the distance 
of a mile and a quarter, or not more than a mile and 
a half from the Canada shore. Colonel Prince came up 
with the persons they were pursuing — that he perceived 



12S TESTIMONY OF CAPT. GIRTY. 

that the Colonel at the moment took a sword from the 
hands of the largest man of the two, whom he afterwards 
ascertained to be the Prisoner, Mr. Sutherland — that Hag- 
gerty went up to the smaller man and took his sword; 
this he, also, saw — that Colonel Prince and Haggerty 
with the two men then returned — that as soon as they 
met us, the Colonel said, " Girty, we have General Suth- 
erland" — that he, witness, then immediately said, he 
knew the young man who was with them, having seen 
him before at Pontiac, at the head of a company of what 
they called the Patriot army — that he considered the dis- 
tance from the Canada shore nearest to where Mr. Suth- 
erland w^as captured, and from thence directly to the Uni- 
ted States shore, to be about eight miles — that some call 
it ten miles. [The distance is over thirteen miles.] 

That on the 19th of February, he attended the theatre 
at Detroit, and there saw Mr. Sutherland, that being the 
first lime he ever saw him to his knowledge — that on his 
entering the theatre he saw him addressing the per- 
sons then present, encouraging the cause of the Patriots, 
inviting his hearers to come forioard for the relief of the 
oppressed Canadiaiis — that such were the terms of his ad- 
dress (1.) — that he, witness, left the theatre before the 
usual time of their dismissal — that next morning he went 
to Pontiac ; and from thence to Ann Arbor ; and from 
thence to Ypsilanti — that he then went to Amherstburgh, 
and then returned immediately to Monroe in Michigan, 
where, on Friday evening, the 23d of February, he saw 
Mr. Sutherland — that evening there was anumber of the 
persons calling themselves Patriots, in the taverns of the 
village — that the next morning he saw Mr. Sutherland in 
the street — that witness immediately left the place and 
proceeded towards Amherstburgh, following up the rear 
of the Patriot army, until they crossed to Fighting Island, 
when he returned to Gibralter and crossed the river to 
Amherstburgh, where he gave information of what he 
saw to Colonel Maitland — that he did not again see Mr. 
Sutherland, until he was captured on the ice — that on the 
morning of the 5th inst. (March, 1838,) he went with 
Colonel Prince and Major Lachlan to the fort, [Maiden,] 

(1.) This is all fabrication. 



TESTIMONY OF CAPT. GIRTY. 129 

when Mr. Sutherland was brought before them — that he, 
Colonel Prince, then asked him some questions, and cau- 
tioned him particularly not to say any thing that would 
militate against him — that Mr. Sutherland said — " Gen- 
tlemen, I will tell you frankly :" and stated — " that he 
had been on Navy Island — and was second in command 
at that place — that he had, at a certain date," which he 
does not now recollect, " left*Navy Island and came up to 
Cleveland, and from that thence up to Gibralter in Michi- 
gan, nearly opposite Amherstburgh — that Mr. Suther- 
land, also confessed that he was with the Patriots with a 
scow or boat, of which they had four or five, on the night 
of the eight of January — that he had the direction of 
them — that there had been some disagreement among 
them as to who should command — that he, witness, then 
stated that he saw those boats come up to the corner of 
of Bois Blanc Island, and that he saw two discharges of 
cannon which took place from the boats — that Mr. Suther- 
land had further stated on his examination at Amherst- 
burgh — '* that he had landed on the morning of the ninth 
of January, on Bois Blanc Island, at the head oi fifty- 
three men. 

At this part of the examination, the hour of 4 o'clock 
P. M. having arrived, the President adjourned the Court 
till 10 o'clock of the next day. 



SIXTH DAY. 



Wednesday, March 21, 1838. 



The Court met pursuant to adjournment. Present the 
same members as before. 

Girty was again called by the Judge Advocate, who 
continued the direct examination. 

The copy of the examination of the Prisoner, at Am- 
herstburgh, was here put into the hands of the witness, 
Girty. He states that the same was taken at Amherst- 
burgh in his presence — that Colonel Prince read it over 
to Mr. Sutherland, and asked him if it was correct, and 



130 TESTIMONY OF CAPT. GIRTY. 

that he admitted that it was (1.) — that he, witness was 
one of the magistrates attending upon that occasion ; and 
that his name at the foot of the paper, is his signature. 

The Court. [By Colonel Kingsmill.] How long have 
you lived in tlie Western District of Upper Canada ; and 
are you acquainted with the country ahout Amherstburgh? 
If so, state what 3^ou know ahout it. 

Answe7'. I was horn in the township of Maiden, in the 
Western District of Upper Canada, within two miles and 
.a quarter of Amherstburgh ; and have lived there for 
about thirty years of my life. I am well acquainted with 
the coast along from Amherstburgh to Point Pele, and in 
particular that part about two and a half miles below 
where I live, called Bar Point ; also, called Harily^s 
Point, which is the nearest point on the Canada shore to 
the place where Mr. Sutherland was taken. The nearest 
place on the United States shore, is Point Mouillee. To 
the best of my belief, and to be within limits, I state the 
distance from where Mr. Sutherland was captured to Point 
Mouillee, at four miles and a half ; and also that it is 
usually said to be about eight miles from shore to shore. 
I, also, again state that the distance from the Canada shore 
to where Mr. Sutherland loas captured to be withhi a mile 
and a half 

[In his direct examination, Girty says, that the place 
where I was " captured was not more than a mile and a 
half from the Canada shore." This he repeats in his 
answer to the cross-examination by the Court. He, also, 
says in his direct examination — " that at the place of 
my capture he considered it to be about eight miles 
from shore to shore." But, also says, " that it is 
called by some ten miles." In his answer to the cross- 
examination by the Court he says, " it is usually stated to 
be about eight miles from shore to shore." He, also, says, 
" that to the best of his belief, it is four miles a7id a half 
from the place where I was captured to the shore of the 
United States, at Point Mouillee." Now, observe how 
these statements tall)'. If the distance across is ten 
miles, as Girty said, some call it, and I was four and a 
half miles from our shore, then I was captured five and a 

(1.) See note 16 to the testimony deposed by Prince. 



CROSS-EXAMINATION OF CAPT. GIRTY. 13 1 

half miles from the Canada shore, instead of one and a half 
miles, as he swears. If the distance across is eight miles, 
as he swears, he understood it to be, and I was captured 
four and a half miles from our shore, I was captured at 
the distance of three and a half miles froni the Canada 
shore, instead of one and a half, as he swears. Either 
of these statements establish the place of my capture to 
have been within the lines of the United States ; for, the 
boundary line as established at that place, between the 
two countries, is located at the distance of only about 
one mile from the Canada shore. The distance from 
Hartly's Point to Point Mouillee is thirteen miles ; and 
if it was true that I was captured at a distance of four 
and a half miles from Point Mouillee, I was then taken 
at a distance of eight and a half miles from Hartly's 
point, and all of seven miles within the lines of the Uni- 
ted States.] 

Cross-Examination of the witness Girty, by General 
Sutherland. 

1st Question. At what hour of the day did your party 
capture me ? 

Answer. I think it was between four and five o'clock 
in the afternoon. 

2d Question. At the time of my capture did you ob- 
serve a schooner frozen in the ice, in that vicinity ? If so, 
what distance were you from the schooner at the time of 
my capture ? 

Answer. I saw a schooner frozen in the ice, at the dis- 
tance, as I should judge, of about two miles, or very near 
that. 

Sd Question. Did you see any other schooner frozen 
in the ice, near where my capture took place ? 

Answer. I did not. 

4:th Question. Was there a travelled road on the ice 
between Point Mouillee and Hartly's Point ? 

Answer. Not in that direction. 

5th Question. Did you see an island near the schoon- 
er you have mentioned ? If so, what direction did the 
island bear from it ; and how far distant was it from the 
schooner ? 



132 CROSS-EXAMINATION OF 

Answer. I did not see an island. There is no island 
nearer the schooner than Bois Blanc, or Sugar Island, 
both of which lie at a distance from where the schooner 
then was of more than four miles. 

6th Question. Is not the island called the West Sis- 
ter, to be seen from where the schooner lay, or from the 
Canada shore three miles below Hartly's Point ? 

Answer. In a very clear day you can discover it with 
the eye. It is not less than 15 miles distant from Hart- 
ly's Point. 

[The true distance from Hartly's Point to the island 
called the West Sister, is about 15 miles, in a south-west- 
erly direction. In clear weather, it can be very plainly 
seen from Hartly's Point, or from any place within three 
miles below, as I observed on passing along the Canada 
shore, on my way to Toronto, the day after my capture.] 

7th Question. After you started in pursuit of me, what 
was your course on the ice ? and what length of time 
elapsed before I was overtaken by Prince and his party 
after he had left the Canada shore? 

Answer. It was nearly in a southerly direction. I 
think it could not be more than ten minutes from the time 
Colonel Prince got into the sleigh he met, until he over- 
took Mr. Sutherland. 

Sth Question. Was I running, or walking, when you 
may suppose I must have seen Prince and the sleighs in 
pursuit ? 

Answer. I was under the impression that Mr. Suther- 
land was running, and that he had run for more than a 
quarter of a mile. 

[In his direct examination, it will be seen that Girty, 
(as well as Prince,) swears that I was going towards the 
Canada shore ; and upon his cross-examination, that I 
was travelling in a southerly direction. Now, from the 
place where either Prince or Girty locate the ground of 
my capture, the Canada shore is situated directly to the 
north ; and the situation of Portage, (Lower Sandusky,) is 
nearly as direct to the south. Sandusky, proper, lies to 
to the east of south. 

Again ; in his direct examination, as it will be seen, 
Girty testified, " that he had halted ; and that he had then 



CAPT. GIRTY. 133 

drove after me, as lie thought he discovered that I was 
running" — ^[towards the Canada shore ?) In his cross- 
examination, he also repeats, " that he wsls under the im- 
pression that I was running" — and had continued to do 
so for some distance.] 

9th Question. At w'-hose house in Monroe, did you see 
me on the Friday evening you have mentioned in your 
direct examination ? 

Anstver. It was at a puhlic inn. Whose, I do not re- 
member. 

10th Question. Did you say you followed the Patriot 
army from Monroe to Fighting Island ? If so ; did you 
then, or after, see me with the Patriot army ; or do you 
know of my having any connexion with them after you 
saw me at Monroe, on the occasion you have mentioned 
in your direct examination ? 

Answer. I did follow the Patriot army from Monroe 
to Fighting Island ; but I did not see Mr. Sutherland 
with them; and I do not know that he had any connexion 
with the Patriot army after I saw him at Monroe. 

Wth Question. At any time on the same day and be- 
fore my capture, did you observe me meet a sleigh go- 
ing from the Canada shore to that of the United States — 
and the sleigh to stop with me for any time ? 

Answer, No. 

12th Question. At the time of my capture, was it a 
clear sun-shiny day ? 

Answer. It was a tolerably clear or fair afternoon. 

l^th Question. At the time of my examination at Am- 
herstburgh, did I not tell you that at some time in the 
early part of February last, I had dissolved my connexion 
with the Patriots of Upper Canada,^ as I then believed I 
had been deceived as to the intentions of the people of 
the Province ; and that I had made a formal resignation 
of my command, and made the same known in Michigan. 
That I had determined to write a book for publication, 
giving a true account of the proceedings of the Patriots 
of Upper Canada ; or words to that effect ? 

Answer. After the statement was made and signed by 
the magistrate, Mr. Sutherland spoke to this effect: [Af- 
ter the examination, as it was called, Avas shown to me, 
12 



134 CROSS-EXAMINATION OF CAPT. GIRTY. 

I had no farther conversation with either Prince, Lach- 
lan, or Girty. or in their presence.] " That he had re- 
signed; that he was going east to write a book ; that if 
he knew how he stood with us he might he useful to us /" 
[A vile perversion of the fact.] Which left an impression 
on my mind that he wished to be Queen's evidence. [See 
note to Prince's testimony on the same matter.] Also, 
to the effect that he had been deceived as to the inten- 
tions of the people of Upper Canada. 

14^A Question. At the time of my examination at Am- 
herstburgh, in answer to an inquiry from Colonel Prince, 
did I tell him in your presence, that I had had no connex- 
ion whatever with the persons who had been in arms on 
Fighting Island, or on Pele Island. That I was not 
aware of having ever seen any of the persons said to have 
been on Pele Island, except Captain Van Rensselaer. 
That I had never in my life been on Pele Island ? Or, 
have you, at any time, heard me make such a statement ? 

Ansioer. I do not know that Colonel Prince ever made 
any such inquiries of Mr. Sutherland ; nor do I recollect 
that any one else put any such questions to him at the 
time of the examination. I think that while he was on 
the ice, after his capture, I asked him if he had not 
been on Fighting Island; and he answered, "No." I 
asked him then whether he knew the persons who had 
been shot on Pele Island. He said that he did not know 
any other than Captain Van Rensselaer. 

[I never spoke to or exchanged a word with Girty, un- 
til I was brought before him in the officers' guard-room 
at Fort Maiden. Nor did he speak to me, or make any 
inquiries of me on the ice.] 

\5th Question. Did I make any statement of facts at 
the time of my examination at Amherstburgh, which are 
not contained in the record of that examination now in 
court, and to which you have sworn ? 

Major Gurnett. There is no record of an examination 
in Court. 

Captain Powel. It is no examination; but a confes- 
sion. 

General Sutherlayid. It has been sworn to as an ex- 



TESTIMONY OF MATTHEW HAYES. 135 

amination ; and it has been called such, by the Court ever 
since its production. 

Lt. Col. Brown. It has not. No body has called it an 
examination. 

Col. Kingsmill. Mr. Sutherland, this paper is not re- 
garded by the Court as a record of an examination, but 
merely as a memorandum of your confessions. 

General Sutherland. Then, if the paper be considered 
a mere memorandum of the matters it is alleged I con- 
fessed, I have the right to have all those confessions; and 
all that I said at the time, I have the right to show to the 
Court by this witness. 

Col. Kingsmill. You can show nothing now, different 
from what the paper contains. If the paper did not con- 
tain all that you had stated, it was your time to have ob- 
jected when it was read to you at Amherstburgh, by Col. 
Prince. 

Major Gurneit. I'll not consent that the Prisoner puts 
any more questions to this witness, concerning that paper 
or his own stories. 

The President, Col. Jarvis. This question cannot be 
put ; and as we have decided this to be irrelevant, you 
can put no more questions to this witness. 

Judge Advocate. Captain Girty, you may stand aside. 
Thereupon the witness withdrew. 



Matthew Hayes, Late a Sergeant in Her Majesty's 
15th Kegt. of foot, being duly sworn on the holy Evan- 
gelists, states to the Court : 

That he went to Navy Island on the twenty-first day of 
December, 1837 — that after he got there, William Lyon 
Mackenzie, asked him " what brought him there" — that 
he told him he came for the purpose of seeing the Island 
— that Mackenzie then told him that he could not leave 
the Island — that he saw General Sutherland on the beach 
v/hen he landed — that there was a Mr. Gorham, whom 
he understood came from New-Market in Upper Canada 
— that he, (Mr. G.) told witness, that he came from New- 
Market — that Mr. Gorham acted as Aid-de-Camp to Ge- 
neral Van Rensselaer — that he|saw General Sutherland on 
Navy Island, from time to time, from the 21st to the 28th 



136 TESTIMONY- OF MATTHEW HAYES. 

or 29th of Dec. — that he cannot be positive which — that 
he was in the capacity of second in command of the Pa- 
triot forces — that he was Brigadier General — that he saw 
General Sutherland leave Navy Island — that it may have 
been on the 2Sth or 29th of Dec. but was not positive of 
the day — that General Sutherland carried a cavalry sword 
in the usual form — that there were no people in uniform 
on the island — that they were in general, armed with 
guns, swords, pistols and pikes — that some of the men 
had charge of cannon — that General Sutherland addres- 
sed the men on the Island the day he left it ; and gave 
up the command he held there to Major Vreeland, who 
took his place — that in his address to the men, General 
Sutherland said, " they were embarked in a glorious 
cause," and he " implored the God of battles to direct 
and prosper them." 

The Court. [By Lt. Col. Brown.] Have you before 
seen Mr. Sutherland since he left the island ? If so ; 
state when. 

Ansioer. I have not seen him since he left Navy 
Island, until I came into Court here. 

The Court. [By Lt. Col. Brown.] Did you see any 
other British subjects on Navy Island, whose names you 
did not know ? 

Answer. There were forty or fifty persons on Navy 
Island ivhom I understood were British subjects. Many 
of them told me so themselves. I have had opportunities 
of conversing with them, and I have no doubt of their be- 
ing British subjects. 

[All this was put into the mouth of the witness by Lt. 
Col. Brown and Major Gurnett. I objected to the testi- 
mony, (if testimony it could be called,) but my objec- 
tions were overruled. What puzzled me the most was, 
to understand how Hayes could know any person to be a 
British subject without ever knowing his 7iame.] 

The Court. [By Col. KingsmilL] Did they form a 
part of the hostile force on Navy Island ? 

Answer. Yes. 

The Court. [By Major Gurnett.] Do you recollect a 
man named Switzer who was on the island ? 

Ansiver. I do not. 



CROSS-EXAMINATION OF MATTHEW HAYES. 137 

Cross-Examination of the witness Hayes, by General 
Sutherland. 

1st Question. Did you ever see me in conversation 
with William Lyon Mackenzie on Navy Island ? 

Answer. Yes. 

2d Question. At what place on the island ; and what 
was the subject of conversation ? 

Answer. I saw Mackenzie in conversation with Gene- 
ral Sutherland, at the place called Head -Quarters; but 
the subject of the conversation I know not, 

3c? Question. Did you see me on Navy Island after the 
burning of the steamer Caroline ? 

Answer. No. 

Ath Question. Where on Navy Island did you first see 
me? Were there any peculiar circumstances in the 
meeting? If so; state them. 

Answer. I first saw General Sutherland on the beach 
at the usual place of landing, near Head-Quarters. As 
to particular circumstances, there were none that I know 
of. 

5tk Question. Where on Navy Island did you first 
enter into conversation with me ; and what was the sub- 
ject of that conversation ? 

Answer. My first conversation with General Suther- 
land was on the beach near Head Quarters. The sub- 
ject of the conversation I do not recollect. 

6tk Question. Who was in command of Navy Island 
while I was there ? 

Answer. General Van Rensselaer. But he was some- 
times absent, and then General Sutherland commanded. 

1th Question. Do you know to what country General 
Van Eensselaer belonged ? or, do you know that he was 
a British subject ? 

Answer. I understood that he was an American ; that 
is, a citizen of the United States. 

Sih Question. Were there any batteries on Navy Isl- 
and at the time you say I left it ? 

Answer. There was one on the western extremity of 
the island. 

9?A Question. Do you know of your own knowledge 
that General Van Rensselaer was absent from Navy Isl- 
12* 



138 CROSS-EXAMINATION OF 

and, 'between the 21st and 29tli of December last ? If 
SO ; do you know that the absence of General Van Rens- 
selaer was known to me at the time ? and if so ; on what 
days of the said month of December was General Van 
Rensselaer absent from the island ? 

Answer. He was absent to my knowledge. I also 
heard General Sutherland say he was absenjj. I stopped 
in the quarters of General Sutherland, and thus I came 
to know it. I cannot well remember the particular days. 

At this part of the cross-examination, the hour of four 
o'clock P. M. having arrived, the President adjourned the 
Court till ten o'clock of the next day. 



SEVENTH DAY. 



Thuhsday, March 22, 183S. 



The Court met pursuant to adjournment. Present the 
same members as before. 

The Cross-Examination of the witness Hayes, by Gen- 
eral Sutherland, continued. 

IQth Questio7i. To what shore did I proceed when 
I left Navy Island ? To the shore of the State of New- 
York, or of Canada ? 

Ansiver. To the shore of New- York. 

Wtk Question. Did you learn from Willian Lyon 
Mackenzie, while on Navy Island, that he was on un- 
friendly terms with me, before, or at the time I left ? 

Ansiver. I did not. 

V2th Question. Did you learn from me, while I was 
on Navy Island, that I was unfriendly to Mr. Mackenzie ; 
or, that I had any difference w^ith him ? 

Answer. I did not. 

V^th Question. Did you know that William Lyon 
Mackenzie had said to me before I left Navy Island, that 
he, Mr. Mackenzie, wished me to go off from the island ? 

Answer. I did not. 

\^th Question. How, or by whom, or from whom, 



MATTHEW HAYES. 139 

were the provisions and military stores used by the force. 
on Navy Island, procured or furnished? 

Answer. I understood they were furnished by citizens 
of the United States. They were brought to Navy Isl- 
and from the United States shore. They were brought 
both by citizens of the United States and by Canadians. 
Provisions wqre so brought to the island during the time 
General Sutherland was there. 

I5th Question. What Canadians brought provisions to 
Nav}^ Island while I was there ? 

Ansiver. There was one M'Carthy, and one Coronan, 
who acted as boatmen. M'Carthy belonged to the Pa- 
triots on Navy Island, and Coronan belonged to the Ca- 
roline steamer. He told me so himself. 

[The last sentence was put into the witness's mouth 
by Major Gurnett. M'Carthy was a citizen of the United 
States, and a native of the State of Pennsylvania, as I 
happen to know. Coronan, I know nothing of — there 
may have been such a man with the Patriots, and there 
may have not.] 

\%th Question. I understood you to state, yesterday, 
that you did not know the names of any of the persons 
at Navy Island, you supposed to be British subjects, ex- 
cept two. How do you account for the discrepancy ? 

Answer. I could not bring them to recollection yes- 
terday. 

V7th Question. Who did the men, you have mentioned, 
inform you, furnished the provisions which were brought 
to Navy Island ? 

Answer. I do not know who furnished the provisions. 
The men told me they took them in at Schlosser. 

\^th Question. Did you say you came to Navy Island 
not with the intention, nor for the purpose of joining the 
Patriot forces there at the time ; and that you was detain- 
ed there against your will ; and do you mean to testify- 
that you went upon Navy Island merely to gratify your 
curiosity ; and did you consider yourself a prisoner while 
there, detained against your will ? 

Answer, I went to Navy Island for the purpose of not 
joining the party ; General Sutherland told me not to make 
myself uneasy, as I might stop with him in his quarters ; 



140 CROSS-EXAMINATION OF 

I do mean to say that I was detained there against my 
will. I do mean to say that I went to Navy Island 
merely to gratify my curiosity. I did consider myself a 
prisoner there, not being allowed to return in the boat, 
there being a guard on the beach, who had orders from 
General Sutherland, Mr. Gorham, and Mr. Mackenzie, 
to allow no person to leave the Island without their leave. 
[All these answers, save the first, the witness was helped 
to by Colonel Kingsmill, Lt. Col. Brown and Major Gur- 
nett.] 

19th Question. When did witness leave Navy Island ; 
and under what circumstances ? 

Answer. I left Navy Island on the 4th of January, in 
the absence of Mr. Mackenzie, by obtaining leave of 
General Van Eensselaer ; which I did on condition of re- 
turning that evening. General Van Rensselaer told me 
to go to Captain Harper, and obtain a pass from him ; 
which I did, and took it to General Van Rensselaer, and 
he approved of it. 

20^A Question. Did you hold any rank, or did you ex- 
ercise any office on Navy Island after I left there ; or 
were you then and there ranked above a common senti- 
nel 1 

Answer. General Sutherland said, that I was to act as 
Adjutant, and I did so through fear ; and I continued to 
act in that office until a friend of Major Vreeland came to 
the Island, who was appointed to the office ; I being dis- 
placed, in consequence of not acting efficiently. 

^\st Question. Did I ever make any threat to )^ou on 
Navy Island ? If so; what was it — and who was present ? 

Ansiver. No. 

22d. Question. Are you a prisoner at this time in this 
Province, charged with the commission of high treason, 
or of any other offence against Her Majesty the Queen 
of Great Britain ? If so ; have you been promised, or do 
you expect a reprieve or pardon, or any mitigation of the 
penalties of your offence, in consideration of testifying on 
this trial against me ; or have you directly or indirectly 
received any promise of benefit, or reward for so testify- 
ing ; or do you expect the same ? 

Answer. I am a prisoner ; but I do not know on what 



MATTHEW HAYES. 141 

charge ; I have not been promised any pardon or mitiga- 
tion of penalty; nor have been promised any fee or re- 
ward for testifying on this trial; nor do I expect any. 

23^ Question. Have you conversed with any person 
or persons engaged on or with this trial, or the prosecu- 
tion of this suit against me in relation to what you should 
testify on this trial, or in relation to what you knew of 
my having been on Navy Island ? If so ; name the per- 
son or persons with whom the conversation was had, and 
the substance thereof? 

Answer. Yes. I have had a coversation with the Judge 
Advocate. He said General Sutherland was a prisoner ; 
and asked me if I knew him. I said I did know him to 
have been on Navy Island part of the time I was there. 
He asked me if I was satisfied to give evidence against 
him ; and I said I was. Nothing else passed as I now re- 
collect ; I had no conversation with any one else on the 
subject. 

24?A Question. Was it usual with me while I Was on 
Navy Island, to detain all persons who came there; and 
were those prevented from leaving without the consent of 
General Van Rensselaer ? 

Ansiver. Not in all cases. Those who were on the 
Island were prevented from leaving it without leave of 
General Van Rensselaer, General Sutherland, Mr. Mac- 
kenzie or Mr. Gorham. 

25th Question. Were there any other persons besides 
yourself who came to Navy Island from motives of curio- 
sity, detained there while you was there ? If so ; were 
any such persons appointed to offices ? and was such a 
course usual ? 

Answer. There Was one other person, who said he 
was detained against his will, who was appointed to an 
office, and he was the only one I know of. That person, 
I think was named Rodgers. I know that he wanted to 
go off but was prevented, and threatened to be confined 
as a prisoner if he attempted to get away from the Island. 

2Qth Question. Was Rodgers on Navy. Island at the 
time I was there ? 

Answer. Yes. 

21 th Question. What office did Rodgers hold ? 



142 CROSS-EXAMINATION OF 

Answer. He was told that he was to act in the capa- 
city of Sergeant ; [and the witness was made to say, by the 
help of Colonel Kingsmill,] and he did act as Sergeant ; 
and he was compelled to do so. 

28th Question. To what country did Eodgers belong ? 

Answer. He told me that he was from Upper Canada, 
near Chippewa. I have to add that I have no knowledge, 
myself, of what country he was a native. 

29^A Question. You stated, as I have understood you, 
that you were afraid to leave Navy Island. What rea- 
son had you to be afraid ? 

Answer. The orders on Navy Island were, that any 
person leaving the island without permission, was to be 
fired on, if they did not return when ordered. 

20th Question. Did you hear me say while on Navy 
Island, that I had nothing to do with Mackenzie, and that 
I would have nothing to do with him? 

[The object of this question was two fold. 1. It was 
necessary to befog the Court, as well as the witness, as 
they would not allow him to answer any question which 
had a weight in my defence, if they could perceive the 
bearing. 2. It was essential for me to establish the nega- 
tive of that part of the Charge which alleged, " that I 
was joined to William Lyon Mackenzie." 

Answer. I never heard him say so. 

2\st Question. Did you ever apply to me for leave to 
go from the island ? 

A?isiver. I do not recollect that I did. 

32d Question. Did Mr. Mackenzie exercise any mili- 
tary command on Navy Island while I was there ; or did 
he assume to direct or command any person who acted as 
officers and soldiers on Navy Island, while I was there, 
to your knowledge ? 

Ansiver. Nothing further than preventing people from 
leaving the island. I recollect that on one occasion, Mr. 
Mackenzie exercised this authority when General Suther- 
land was present. [This is a fabrication.] I think Gen- 
eral Sutherland must have been close enough to hear. I 
was one of those who wished them to leave the Island. 

336^ Question. Do you know from what country and 
from what place the arms and munitions of war you saw 



MATTHEW HAYES. 



143 



on Navy Island were brought, or by whom they were 
brought ? If so ; state. 

Answer. I saw a company come to the island, consist- 
ing of about 40 or more individuals, Americans and Cana- 
dians, who were armed with muskets, rifles, swords and 
pistols. I think those came from Schlosser, in the state 
of New-York, to the Island. 

[This statement to which I objected, as it was not an 
answer to my question, was manufactured for the witness 
by one of the members of the court.] 

Here the Cross-Examination of the 'witness Hayes, by 
General Sutherland, was interrupted by the Court. 

The Court. [By Major Gurnett.] Are you aware 
that there was a provisional government established on 
Navy Island ? If so ; who were the members of that go- 
vernment ? 

Answer. There was a proclamation on the island es- 
tablishing a provisional government ; and Mackerizie was 
chairman of it pro tern. [This part of the answer was 
manufactured by Lt. Col. Brown.] I think that Nelson 
Gorham and Silas Fletcher were of the number. 

The Court. [By Major Gurnett.] Were the military 
forces over which General Sutherland was seen to com- 
mand, acting under the orders of that government ? 

Answer. Yes. 

The Cross-Exabiination of the witness Hayes, by Gen- 
eral Sutherland, resumed. 

34?A Question. How do you know the fact, witness, 
that the military forces on Navy Island were acting un- 
der the orders of a provisional government, while I was 
there ? 

Answer. I was told by Mr. Mackenzie that he was the 
person who was the author of the proclamation published, 
and placed upon the island in different places. [This 
answer was manufactured for the witness, by Colonel 
Kingsmill, Lt. Col. Brown and Major Gurnett.] 

^5th Question. You have said that there was a pro- 
visional government on Navy Island. Please define the 
powers of that government ; and state by whom granted ; 
and by whom exercised ; and what acts were done ? You 
may answer, also, if the proclamation of which you have 



144 CROSS-EXAMINATION OF 

testified, was circulated on Navy Island while I was there ; 
and what were the offices of the provisional government, 
and who received them ? 

Answer, I know that they invaded a part of Upper 
Canada, and held it against the authorities of the British 
government ; [This was put in the witness's mouth by 
Major Gurnett ;] and that they had a flag fl5dng with the 
word " liberty,'''' and two stars on it. This power was 
granted by Mr. Mackenzie and others on the island. Of 
their acts, I knew them to fire on the inhabitants of Cana- 
da from the island. [This was put into the mouth of the 
witness by Lt. Col. Brown.] The hand-bill, or procla- 
mation, was circulated on Navy Island while General 
Sutherland was there. Mr. Mackenzie was Chairman of 
the committee who framed the proclamation, but I cannot 
name the other ofiicers. [This was put into the mouth of 
the witness by Major Gurnett.] 

36?A Questio7i. Do you know, by whom the flag you 
speak of was put up on Navy Island ? 

Ansiver. I do not. It was flying when I went there. 

37^A Question. Do you know, witness, by whose per- 
mission, or by what authority. General Van Rensselaer, 
myself, or any other citizen of the United States, were on 
Navy Island ? If so ; state it. Can witness say that they 
were not on Navy Island, by the order or permission of the 
Government of the State of New-York ; or of the Govern- 
ment of the United States ; or of the Government of Her 
Brittanic Majesty ? 

Amwer. They assumed the authority iheinsehes, of 
their own accord. [This was put into the mouth of the 
witness by Lt. Col. Brown and Major Gurnett.] I do not 
know that they had any from the government of the State 
of New-York, or from the government of the United 
States. [This was put into the mouth of the witness by 
the Judge Advocate.] I know they had no authority from 
the government of her Brittanic Majesty. [/Z>.] 

^Sth Question. Have you stated on your direct exami- 
nation, all that was material, said by me to the men on 
Navy Island, at the time I was about to leave ? 

Answer. I do not recollect any thing more of import- 
ance. 



OF MATTHEW HAYES. 145 

39^^ Question. Was John S. Vreeland a citizen of the 
United States, to your knowledge ? 

Answer. I have heard it said, he was ; but I do not 
know. I should think he was a citizen of the United 
States. 

4tOth Question. You have testified that you saw Wil- 
liam Lyon Mackenzie on Navy Island. Did you ever see 
him wear any kind of arms while I was on the Island ? 

Answer. I saw Mr. Mackenzie carry pistols in his 
breast during the time General Sutherland was on the 
Island. 

4:1st Question. At the time of the first conversation 
you had with me on Navy Island, did you not tell me that 
Mr. Mackenzie was your particular friend ; and that you 
had come to Navy Island to see him ; and that you had 
been persuaded by him to stay on the Island ? 

Answer. I do not recollect any thing of the kind. 

42^ Question. What has been your occupation during 
the past year ? 

Answer. I was attached to a schooner on Lake Onta- 
rio during the summer months. After leaving the schoon- 
er, I lived in Toronto until the 31st of October last. 

43^ Question. Had you been an inhabitant of the 
State of New- York for some months previous to your go- 
ing upon Navy Island ? If so ; state how many months, 
and at what places you have resided in said State ? 

Answer. I was not a resident or inhabitant of the State 
of New- York. But I was some time in Rochester, and 
some time in Bufialo, trading. 

44th Question. Have you before testified or been ex- 
amined concerning your having been on Navy Island, and 
about what transpired there ? If so ; did you then state, 
or testify concerning those matters as you have now testi- 
fied ? 

Answer. I came of my own accord to Waterloo, oppo- 
site Black Rock, and was there asked by Colonel KirW, 
" what my business was ?" I told him that I had come 
from Navy Island, and showed my pass from thence. I 
told him all I knew of Navy Island. I was then sent to 
Chippewa, where I saw Col. McNab, in the evening with 
§ome other officers ; and I stated to him the same I did to 

13 



146 CROSS-EXAMINATION OF MATTHEW HAYES. 

Colonel KIrby, as nearly as I could recollect. Colonel 
McNab then desired me to call on him again the next 
morning ; and I called on him the next day, which was 
the 14th or 15th of January, when a magistrate was sent 
for, before whom I made a statement, like that which I 
made the day before, and partly the same as I have made 
before this Court. The same hi suhstayice. [This last 
sentence was put into the mouth of the witness by the 
Judge Advocate.] 

^th Question. While on Navy Island, witness, did 
you tell me that Mr. Mackenzie had assisted you in get- 
ting some office in Toronto ; and that he had done you 
many other favors ? 

Answer. No. 

46?A Question. Where were you, and in what busi- 
ness were you engaged, from the 4th of January, when 
you have testified that you obtained your pass on Navy 
Island, to the 13th of the same month, when you have 
testified you crossed to Waterloo ? 

Answer. After I left Navy Island, I discovered that I 
had left a coat of mine behind, and waited two or three 
days at Schlosser to recover it. I then went to Buffalo, 
where I remained until the l?»th of January, when I cross- 
ed over to Waterloo. 

It was then signified to the Court by General Suther- 
land, that the cross-examination on his part was closed. 
Whereupon, the Judge Advocate acquainted the Court 
that he rested the proofs on the part of the prosecution. 

The Prisoner, General Sutherland, then being called 
upon by the Court for his defence, prayed the Court to 
grant him time until Thursday, the 29th day of March 
inst., to send for his witnesses, and to prepare a defence 
in writing ; and the Court granted the same. 

Thereupon the President adjourned the Court till 
Thursday the 29th day of March, inst.. at 10 o'clock, A. 
M., of that day. 

The Court met pursuant to adjournment on the 29th of March, and then 
from adjournment to adjournment, imtil the ISth day of April, when it was 
dissolved : it having found General Sutherland guilty of the Charge ; and fix 
ed upon him a sentence ; though the preceeding is a full and perfect report" 
of all of the testimony adduced on the trial. 



THE LAW ENACTED BY THE PROVINCIAL PARLIA- 
MENT OF UPPER CANADA, ON WHICH THE PRE- 
CEDING TRIAL WAS PREDICATED. 



An Act to protect the iiihdbitants of this Promnce agazTist 
lawless aggressions from Subjects of Foreign Coimtries, 
at Peace with Her Majesty. Passed 12th January, 
1838. 

Whereas, a number of persons, lately inhabiting the 
State of New-York, or some of the ether United States of 
America, have within the said State of New-York, lately- 
enlisted or engaged themselves to serve as soldiers, or 
have procured others to enlist or engage themselves to 
serve as soldiers, and have within the State of Ne2v- 
York, collected artillery, arms and ammunition, and made 
other preparations for a hostile invasion of this Province, 
under the pretext of assisting certain traitors who have fled 
from this Province to the said United States: and whereccs^ 
the said persons, without the authority of their Government, 
and in defiance of its express injunctions, have actually 
invaded this Province, contrary to the faith and obliga- 
tion of the treaties subsisting between the United Kingdom 
of Great Britain and Ireland and the said United States, 
and during the continuance of the relations of amity and 
peace between the two countries : and whereas, it is ne- 
cessary for protecting the peace and security of this Pro- 
vince, to provide for the prompt punishment of persons so 
offending : Be it enacted, by the Queen's most Excellent 
Majesty, by and with the advise and consent of the Legis- 
lative Council and Assembly of the Province of Upper Ca- 
nada, constituted and assembled by virtue of and under 
the authority of an act passed in the Parliament of Great 
Britain, entitled " An Act to repeal certain parts of an 
act passed in the fourteenth year of His Majesty's reign, 
entitled ' An Act for making more effectual provisions for 
the Government of the Province of Quebec in North 
America,' and to make further provision for the Govern- 
ment of the said Province," and by the authority of the 



148 ACT 12th JAN. 

same, That if any person, being a citizen or subject of 
any Foreign State or Country at peace ivith the United 
Kingdom of Great Britain and Ireland, having joined 
himself before or after the 'passage of this Act, to any sub- 
jects of our Sovereign Lady the Queen, Her Heirs or Suc- 
cessors, loho are or hereafter may be traitorously in arms 
against her Majesty, Her Heirs or Successors, shall after 
the passing of this Act, be or co7itinue in arms against 
Her Majesty, Her Heirs or Successors within this Pro- 
vince, or commit any act of hostility therein, then it shall 
and may be lawful for the Governor of this Province to 
order the assembling of a Militia General Court Martial, 
for the trial of such persons agreeably to the Militia Laws 
of this Province, and upon being found guilty by such 
Court Martial of offending against this Act, such persons 
shall be sentenced by the said Court to suffer death, or such 
other punishment as shall be awarded by the Court. 

2. Be it fu7'ther enacted by the authority aforesaid. 
That if any subject of Her Majesty, Her Heirs or Succes- 
sors, shall within this Province, levy war against Her 
Majesty, Her Heirs or Successors, in company with any 
of the citizens or subjects of any Foreign State or Coun- 
try, then being at peace with the United Kingdom of 
Great Britain and Ireland, and offending against the pro- 
visions of this Act, then such subject of Her Majesty, Her 
Heirs or Successors, shall be liable to be tried and pun- 
ished by a Militia General Court Martial in like manner 
as any citizen or subject of a foreign state or country at 
peace with Her Majesty, Her Heirs or Successors, is liable 
under this Act to be tried and punished. 

3. Be it farther eriacted by the authority aforesaid. 
That the citizen or subject of any foreign state or coun- 
try, offending against the provisions of this Act, shall be 
deemed guilty of felony, and may, notwithstanding the 
provisions hereinbefore contained, be prosecuted and tried 
before any Court of Oyer and Terminer and General 
Gaol Delivery in and for any District of this Province, in 
the same manner as if the offence had been committed in 
such District, and upon conviction shall suffer death as in 
cases of felony. 



;militia J.AWS. 149 

A?i Act to amend, and reduce into one Act, the Militia 
Laios oj this Province. Passed March 6th, 1838. 

Whereas, the several laws now in force for embodying, 
organizing and training the Militia of this Province are, 
in many instances, defective and ineffective : Be it there- 
fore enacted, by the Queen's most Excellent Majesty, by 
and with the advice and consent of the Legislative Coun- 
cil and Assembly of the Province of Upper Canada, con- 
stituted and assembled by virtue of and under the autho- 
rity of an Act passed in Parliament of Great Britain, en- 
titled " An Act to repeal certain parts of an Act passed 
in the fourteenth year of His Majesty's reign, entitled 
' An Act for making more effectual provisions for the Go- 
vernment of the Province- of Quebec in North America,' 
and to make further provisions for the Government of the 
said Province," and by the authority of the same, That 
from and after the passing of this Act, it shall and may 
be lawful for the Lieutenant Governor from time to time, 
to divide the Militia of this Province into such number of 
Regiments or Battalions as he may deem most conducive 
to the efficiency of the said Militia, and under his hand 
and seal to appoint a sufficient number of Colonels, Lieu- 
tenant Colonels, Majors, Captains and other officers, to 
train, discipline and command the said Militia, according 
to such rules, orders and directions, as shall from time to 
time be issued by him for that purpose ; which officers of 
Militia shall rank with officers of Her Majesty's Forces 
serving in this Province, as junior of their respective rank. 
32. Be it further enacted by the authority aforesaid, 
That when the Militia of this Province shall be called out 
on actual service, in all cases where a General Court 
Martial shall be required, the Lieutenant Governor, upon 
application to him made through the officer commanding 
the body of Militia to which the party accused may be- 
long, or in case he be the accused, then through the next 
senior officer, shall issue his order to assemble -a General 
Court Martial, which said General Court Martial shall 
consist of a President, who shall be a field officer, and not 
less than eight other commissioned officers of the Militia : 
Provided always, that in all trials by General Courts Mar- 
13* 



150 MILITIA LAWS. 

tial to be held by virtue of this Act, the Lieutenant Go- 
vernor shall nominate and appoint the person who shall 
act as Judge Advocate ; and that every member of the 
said Court Martial, before any proceeding be had before 
the Court, shall take the following oath before the Judge 
Advocate, who is hereby authorized to administer the 
same, viz : — " You, A. B., do swear, that you will ad- 
minister justice to the best of your understanding, in the 
matter now before you, according to the evidence and the 
Militia laws now in force in this Province, without par- 
tiality, favor or affection ; and you further swear, that you 
will not divulge the sentence of the Court, until it shall 
be approved by the Lieutenant Governor; neither will 
A^ou upon anj^ account, at any time whatever, disclose or 
discover the vote or opinion of any particular member of 
the Court Martial, unless required to give evidence there- 
of as a witness by a Court of Justice, in due course of 
law : So help you God :" And so soon as the said oath 
shall have been administered to the respective members, 
the President of the Court is hereby authorized and re- 
quired to administer to the Judge Advocate, or the person 
officiating as such, an oath in the following words : — 
" You, A. B. do swear, that you will not upon any ac- 
count, at any lime whatsoever, disclose or discover the 
vote or opinion of any particular member of the Court 
Martial, unless required to give evidence thereof as a 
witness by a Court of Justice, in due course of law — so 
help you God :" And the Judge Advocate shall, and is 
hereby authorized, to administer to every person giving 
evidence before the said Court, the following oath : — 
" The evidence you shall give to this Court Martial, on 
the trial of A. B. shall be the truth, the whole truth, and 
nothing but the truth — so held you God :" — Provided al- 
ways, that the Judgment of every such Court Martial 
shall pass with the concurrence of two-thirds of the mem- 
bers, and shall not be put in execution until the Lieute- 
nant Governor has approved thereof. 



MILITIA LAWS. 151 

An extract of the Militia Laws of the Province of Upper 
Canada, passed March 16, 180S, — arid in force until 
the sixth duy of March, 1838. 

Sec. 23. Be it further enacted by the authority 
aforesaid, That when the Militia of this Province shall be 
called out on actual service, in all cases where a General 
Court Martial shall be required, the Governor, Lieutenant 
Governor, or person administering the Government, upon 
complaint and application to him made, through the Colo- 
nel, or officer commanding the body of Militia to which 
the party accused may belong, shall issue his orders to 
the said commanding officer to assemble a General Court 
Martial, which said Court Martial shall consist of a Pre- 
sident, who shall be a field officer, a,nd tivelve other com' 
missioned officers of the Militia : Provided always, that in 
all trials by General Court Martial, to be held by virtue 
of this Act, the Governor, Lieutenant Governor, or person 
administering the Government, shall nominate and ap- 
point the person who shall act as Judge Advocate — and 
that every member of the said Court Martial, before any 
proceedings be had before that Court, shall take the fol- 
lowing oath before the said Judge Advocate, who is here- 
by authorized to administer the same, viz : 

" You, A. B. do swear that you will administer justice 
to the best of your understanding, in the matter now before 
you, according to the evidence, and Militia Laws now in 
force in this Province, without partiality, favor or affec- 
tion ; and you further swear, that you will not divulge the 
sentence of the Court, until it shall be approved by the 
Governor, or person administering the Government ; nei- 
ther will you upon any account, at any time whatsoever, 
disclose or discover the vote or opinion of any particular 
member of the Court Martial, unless required to give evi- 
dence thereof as a witness, by a Court of Justice, in the 
due course of law — so help you God." 

So soon as the said oath shall have been adminis- 
tered to the respective members, the President of the 
Court is hereby authorized and required to administer to 
the Judge Advocate, or the person officiating as such, an 
oath in the following words ; 



152 AFFIDAVIT. 

" You, A. B. do swear that you will not, upon any ac- 
count, at any time whatsoever, disclose or discover the 
vote or opinion of any particular member of the Court 
Martial, unless required to give evidence thereof as a wit- 
ness, by a Court of Justice, in the due course of law — so 
help you God." 

The said Judge Advocate shall, and he is hereby 
authorized to administer to every person giving evidence 
before the said Court, the following oath : 

" The evidence you shall give to this Court Martial, on 
the trial of A. B. shall be the truth, the whole truth, and 
nothing but the truth — so help you God." 

Provided always, that the judgment of every such 
Court Martial shall pass with the concurrence of two- 
thirds of the members, and shall not be put in execution, 
until the Governor, Lieutenant Governor, or person ad- 
ministering the Government, has approved thereof: Pro- 
vided always, that no officer serving in any of His Ma- 
jesty'' s other forces, shall sit in any Court Martial upon 
the trial of any officer or private man serving in the Mi' 
litia. 



AFFIDAVIT OF THE STATE SURVEYOR OF MICHIGAN ; 
MADE DURING THE IMPRISONMENT OF GENERAL 
SUTHERLAND IN UPPER CANADA. 

State of Michigan, 

Wayne County. 

John Farmer, of the city of Detroit, in said county, 
being duly sworn, doth depose and say — that on the 9th 
day of March, 1838, he, this deponent received an order 
from the Governor of this State requiring him, (this de- 
ponent,) as surveyor, to take immediate measures to as- 
certain whether the arrest of Thomas J. Sutherland, a 
citizen of the United States, occurred within the jurisdic- 
tion of said State. 

This deponent further saith, that he was at said city of 
Detroit on the 4th of March, 1838, the 'time he. Gen. 
Sutherland, was arrested by the British authorities — that 
he was therefore ignorant of the place of his arrest, and 



AFFIDAVIT. 



153 



consequently had to refer to others for information ; and 
as it was reported " that Benjamin Chittenden and Da- 
vid Thompson had stated that they saw Gen. Sutherland 
at Gibralter, on the 4th of March last, the day of his ar- 
rest ; that they also saw him with a person supposed to 
be leave our shore on foot upon the ice, in a direc- 
tion for Sandusky, and that some time after the departure 
of him, Gen. Sutherland, they, Chittenden and Thomp- 
son, started in a sleigh from Gibralter, on the ice for the 
city of Brest, and that after passing Point Mouillee, and 
about three or four hours, after the departure of Gen. Su- 
therland, they, Chittenden and Thompson, saw them 
about two and a half miles distant, and evidently on our 
waters, overtaken and arrested by persons in sleighs ap- 
parently direct from the Canada shore." Therefore, this 
deponent sought for, but not being able at that time to 
find Thompson, he called upon said Chittenden only, who 
not only confirmed said report, but also stated to this de- 
ponent that he presumed that he could find the tracks of 
Gen. Sutherland on the ice, by tracing which this depo 
nent might arrive at the place of his arrest ; this depo* 
nent therefore employed said Chittenden, and also one E. 
S. Lathrop to assist him, and having provided himself 
with instruments for the purpose of determining accurate- 
ly the situation of the place of arrest, providing its proxi- 
mitj'- to the national boundary line should render its juris- 
diction uncertain or doubtful; he, this deponent, with 
said Chittenden and Lathrop, proceeded forthwith to Gi- 
bralter, thence by the direction of Chittenden to a place 
on the ice below Gibralter where said Chittendent pointed 
out to this deponent the tracks of two persons leading to- 
wards the Canada shore, which were then supposed to be 
the tracks of Gen. Sutherland and ; they were pa- 
rallel and about three or four feet apart — those made by 
the person who had walked on the upper side were much 
larger of the tv^^o, confirming what Chittenden had pre- 
ously stated, to wit — that Gen. Sutherland was much the 
larger man of the two, and walked on the upper side. 
These tracks this deponent traced to their termination, as 
he then supposed, a short distance from which, was a 
sleigh track apparently fi'om Maiden ; but which this de- 



154 



AFFIDAVIT. 



ponent could not arrive at nor examine, on account of the 
holes in, and the decomposition of the ice at this place, 
which was exceedingly rotten and covered from six to ten 
inches with water. This place, this deponent and also 
Chittenden and Lathrop then concluded was the place of 
Gen. Sutherland's arrest. It was, in the opinion of this 
deponent, within one and a half miles of the Canada 
shore, and in full view of Maiden ; the Queen's store 
house at which place could be distinctly seen between the 
main shore of Canada and Bois Blanc Island ; and the 
light house on said Island bore north five degrees east. 
[I was not at all at this place described. I walked down- 
wards, near the shore of Michigan, until I was out of 
sight of Bois Blanc Island.] This place then, supposed 
to be the place of his arrest, was so evidently within the 
jurisdiction of Canada, that this deponent, and also said 
Chittenden and Lathrop, deemed an actual survey and 
measurement entirely unnecessary. This deponent there- 
fore drew up a report at the time, setting forth the result 
of said examination as aforesaid, which was signed by 
this deponent, and also by said Chittenden and Lathrop 
and which he, this deponent, delivered to the Governor, 
a copy of which this deponent, has not preserved, because 
he then believed that that was the place of Gen. Suther- 
land's arrest — and that it was so evidentl}'- within the 
boundaries of Canada, that its jurisdiction would not and 
could not be questioned. But as said Chittenden has, 
since the making of said examination, and the said draw- 
ing up and signing of said report, stated to this depo- 
nent that he, Chittenden, upon more mature reflection 
entertains strong doubts about those being the tracks 

of General Sutherland and , which he pointed out to 

this deponent at said examination ; and that if they were, 
that he, the said Chittenden, is of the opinion that the 
heavy thaw which succeeded their arrest, must have so 
obliterated the tracks at the time, and especially at the 
place of examination as to have prevented our perceiving 
them farther, and consequently have prevented tracing 
them to their ultimate termination, the place of their ar- 
rest; assigning as a reason that Gen. Sutherland had 
been travellino; quite rapidly for three or four hours on the 



AFFIDAVIT. 



155 



ice, when he was overtaken and arrested, and that conse- 
quently he must have proceeded farther than four or five 
miles at the time of their arrest ; and said Chittenden al- 
leged as a further reason that he and said Thompson could 
not have seen them from Point Mouillee when arrested if 
they were arrested at the place of said examination. 

This deponent would therefore, also, observe that if 
those were the tracks of Gen. Sutherland, and if they 
were beyond the place of said examination, that he, this 
deponent is fully of the opinion, that the ice, at this 
place and immediately beyond, in its vicinity, was so ex:- 
tremely rotten and full of holes, as to have rendered it 
very hazardous, if not impossible, to have pursued them 
further, even if their tracks had continued visible; and 
this deponent further observes, that the snow which had 
been quite deep on the ice at the time of the arrest, was 
at and beyond, in the immediate vicinity of said exami- 
nation, so nearly exhausted by the thaw which succeeded 
the arrest, and the ice at this place was so covered with 
water, so open in spots and filled with air-holes, in a cer- 
tain direction, that this deponent is of the opinion that 
the tracks of Gen. Sutherland, would not have been legi- 
ble farther, if they had continued on from this place in 
the same direction, or if they had turned towards the 
centre of the Lake, or towards a certain vessel lying in 
sight of, and about five or six miles from this place, but 
their tracks would have been legible if they had been 
turned towards the American shore. It is therefore pos- 
sible, (even if those were his tracks,) that this was not 
the termination, or the place of the arrest, as they might 
have turned at or in the vicinity of this place, towards 
and in the direction of a vessel frozen in the ice, which 
this deponent saw, and should think was about five or six 
miles distant. If this was the vessel, (and this deponent 
saw no other,) within half a mile of which it is reported 
that Prince states he arrested Gen. Sutherland, and if he 
was arrested within half a mile of this vessel, then this 
deponent has no doubt he was arrested within the juris- 
diction of the United States ; for this deponent is clearly 
of opinion that this vessel lay at least a mile and a half, 
if not more, westerly of the national boundary line. This 



156 AFFIDAVIT. 

deponent would also further observe, that in his opinion 
it would have been utterly impossible for said Chittenden 
and Thompson, to have seen the arrest of Gen. Suther- 
land, by the British, from Point Mouillee, if they were 
arrested at the place of said examination aforesaid, and 
further this deponent saith not. 

JNO. FARMER, Sicrveyor, ^c. 
Detroit, June 21, 1838. 

Subscribed and sworn before me, 
this 21st day of June, 1838. 

D. E. Harbaugh, Justice of the Peace. 



AFFIDAVIT OF BENJAMIN CHITTENDEN. 

State of Michigan, ) 

Wayne County. )^ ' 

Benjamin Chittenden, of the city of Detroit, in said 
county, being duly sworn, doth depose and sa}'-, that he 
is personally acquainted with Gen. Th. J. Sutherland, a 
prisoner in' Canada, and was so acquainted with him. 
Gen. Sutherland, at the time and when he. Gen. Suther- 
land, (in company with one ,) left Gibralter, in a di- 
rection for Sandusky, which was about 12 o'clock on the 
4th of March, 1838 ; and about an hour and a half after 
their departure, he, this deponent -with one David Thomp- 
son, left Gibralter in a sleigh for the city of Brest, lying 
but seven miles below Swan Creek, and that after travel- 
ling an hour, or an hour and a half from Gibralter, he, 
this deponent, passed Gen. Sutherland on the ice, 7 or 
8 miles below Gibralter, and after so passing them, he, 
this deponent frequently stopped his horse and looked back, 
and saw Gen. Sutherland ; and being Avell acquainted 
with the course and distance from the mouth of the river 
to Pele Island, he, this deponent, then observed to said 
Thompson, that by the direction of Gen. Sutherland, he 
could not be bound to Pele Island. This deponent further 
says, that about four o'clock, P. M. of the same day, and 
after passing Point Mouillee, he, this deponent, saw Gen. 
Sutherland about two and half miles distant from said 



AFFIDAVIT. 157 

deponent, and evidently on our own waters, and far from 
the boundary line, he, this deponent saw Gen. Suther- 
land stop and stand still, and at the same time, he, this 
deponent, saw sleighs with persons therein drive up to, 
and arrest Gen. Sutherland ; which sleighs, this deponent 
had for some time seen approaching him ; and this de- 
ponent further says, that he is certain that Gen. Suther- 
land stopped some minutes before, and stood still until 
the sleighs drove up, and the persons therein arrested 
him ; and that he. Gen. Sutherland, did not run on the 
approach of the sleighs, as is reported to have been stated 
by Col. Prince, who arrested him. 

This deponent further says, that he was called upon for 
information relative to Gen. Sutherland's arrest, and at 
request, accompanied John Farmer, the Surveyor, on the 
10th of March, 1838, for the purpose of examining the 
place of Gen. Sutherland's arrest, and that although he, 
this deponent, signed a report, the result of said exami- 
nation, as set forth in the affidavit of said Farmer ; yet 
nevertheless, he, this deponent, upon mature reflection 
and deliberation entertains strong doubts about those be- 
ing the tracks of Gen. Sutherland, which he, this depo- 
nent pointed out to said Farmer, which he and said Far- 
mer traced, and upon which the report of said examina- 
tion was founded, as set forth in the affidavit of said Far- 
mer; because this deponent was below Point Mouillee 
when he saw Gen. Sutherland arrested, from which place 
this deponent is now confident he could not have seen 
Gen. Sutherland when arrested, if arrested at the place 
of examination on the 10th of March, as set forth in the 
report of said examination, referred to in the affidavit of 
said Farmer. 

This deponent further says, that if those were the 
tracks of Gen. Sutherland, which he pointed out to said 
Farmer, at the time of the examination on the 10th of 
March, that then, he, this deponent, is clearly of the opin- 
ion that the thaw which had taken place subsequent to 
the arrest, but previous to the examination, must have so 
obliterated the impression of Gen. Sutherland's tracks at 
and beyond the place of examination, as to have prevent- 
ed the tracing of them to the place of arrest. This de- 

14 



15S AFFIDAVIT. 

ponent thinks the appearance of the sleigh tracks referred 
to in the report, could not have been that of Prince's ; and 
that if those were the tracks of Gen. Sutherland referred to 
in the report of the examination, that, then, Gen. Suther- 
land must have changed his direction at the place of exa- 
mination, and proceeded towards a certain vessel which 
was frozen in the ice, and the only one at the head of the 
Lake — and which said deponent saw during the examina- 
tion on the 10th of March, and which said deponent should 
think, and knows, was jEive or six miles distant — and as 
far as the eye could reach. If this was the vessel within 
half a mile of which it is reported that Prince has stated 
he arrested Gen. Sutherland, and being the only one 
in that vicinity, then he must have been arrested on our 
own waters, for this deponent thinks said vessel was not 
less than tivo and a half^ or three miles westerly of and 
from the boundary line. 

BENJAMIN CHITTENDEN. 
Subscribed and sworn before me, 
this 22d day of June, 1S38. 

J. W. HiDUG, Justice of the Peace. 



LETTER TO LORD BROUGHAM. 



To THE Right Honorable Lord Brougham, a Peer of 

the Realm of Great Britain. 

My Lord — I am wholly unable to determine what 
apology I ought to make for the liberty I have taken in 
addressing your Lordship with this communication. In- 
deed, I know not that I have any apology to give, save 
the motive with which the communication is made ; and 
upon this, alone, I have founded the hope that your Lord- 
ship may be induced to take into consideration — and to 
act upon the matters herein presented. 

It is due to frankness, my Lord, as I think, that I should 
state, before proceeding further with this my communi- 
cation, that I was, myself, among the number of those 
American citizens, who, in 1837 and 1838, took a part 
with the inhabitants forming a revolutionary party in the 
Canadas ; and that with the Revolutionists of those Pro- 
vinces, in the capacity of a military officer, I assisted in 
the effort which was then made to subvert the authority 
established therein by Her Majesty's Government. My 
reasons for having been concerned in those operations 
will be found in what I am now about to offer in behalf 
of a number of my fellow-citizens, who, like myself, were 
concerned in those revolutionary movements of the Cana- 
das ; and who, having been taken in arms by Her Ma- 
jesty's military forces, have been transported to Van Die- 
mans Land, one of the penal Colonies of Great Britain, 
and there reduced to the condition of common felons ; as 
well as in certain papers and publications which I shall 
endeavor, herewith, to cause to be put into the hands of 
your Lordship. 

According to the information of which I am possessed, 
the number of my unfortunate countrymen who were 
captured during the late civil commotions in the Canadas 
and who now remain in the hands of Her Majesty's Go- 
vernment, must somewhat exceed one hundred. These 
men, as it is represented on good authority, have been 
placed in a convict station, with thieves, robbers, burg- 



160 LETTER TO LORD BROUGHAM. 

lars and others of the vilest of the overflowings of the 
prisons of the British Empire ; and that thus associated, 
they are made to do penance in the same manner as those 
who have been convicted of crimes embracing moral tur- 
pitude. As they were taken in arms against Her Majes- 
ty's Government, the right of that government to detain 
them as prisoners, so long as Her Majesty shall please, is 
not to be disputed ; but I contend, my Lord, that persons 
taken under the circumstances that my countrymen -were 
captured, cannot, in justice, be regarded as felons — and 
that the reducing of them to the condition of such — and 
the making them the companions of foot pads and house 
breakers, is not only a violation of rules adopted and pur- 
sued by the people of the most enlightened nations, but 
that it is an uncalled for severity and a cruelty unnecessary 
to the case ; and tending to defeat the very object for 
which punishments are declared by the laws of the Bri- 
tish nation. Her Majesty's Government may call them 
'pirates and rohhers, and condemn them to the punishment 
of felons, but those, my unfortunate fellow citizens can ne- 
ver be made to regard themselves as such. They had 
acted only from motives of giving a generous assistance to 
what they believed was a struggle for liberty ; and while 
they are loaded with chains and incarcerated in dungeons, 
they will esteem themselves martyrs to the cause of free- 
dom. I am, also, my Lord, from information, induced to 
believe that those men have been condemned upon pro- 
ceedings which would in no manner bear a legal scrutiny. 

We had had it presented to us from the pages of the 
history of our own country, that when the Canadas were 
wrested from the French nation, they were rather con- 
quests to the people of the American Colonies, (now the 
United States,) than to the British Government ; and, 
therefore, when we had reflected that it Avas our fore- 
fathers who mainly contributed to make the Canadas 
— what our territories were then — British Colonies, 
we could not deem it wrong to give the people of those 
colonies assistance in an attempt to make their country 
what ours is now — Free and Independent States ! 

We had lately beheld the whole American people vie- 
ing with each other to do honor to the persons, and to 



LETTER TO LORD BROUGHAM. 161 

glorify the names of those illustrious foreigners who 
who came to this country and embarked with our forefa- 
thers in their early and hazardous struggle for liberty and 
independence ; and we had seen monuments to comme- 
morate their services in the cause of our forefathers, put 
up at the expense of our government ; which was to us 
a prompting of a desire to earn the same honors for our- 
selves. 

However, my Lord, this was not enough to induce the 
action of myself, or of any of my unfortunate fellow-citi- 
zens. Nor were we moved to interfere with the political 
affairs of the Canadas, until we had beheld a civil com- 
motion begun and in full operation in those Provinces ; 
and our services had been solicited by men on whom the 
people of the Canadas had conferred the highest honors 
within their gift. 

Nor until we had beheld that the Government estab- 
lished therein by Her Majesty, had failed to give security 
to life and property, (the only legitimate purpose of Go- 
vernment,) and that robbery, arson and murder was being 
perpetrated in every section of the Provinces, with bold- 
ness and impunity. 

Nor until we had beheld large numbers of women and 
children, who had been driven from their homes in the 
Canadas, by the violence of the soldiery employed there- 
in by Her Majesty's Government, thrown destitute upon 
our borders, a:ppealing to our sympathies for the bread of 
existence. 

Nor until we had beheld a large foreign army landed 
in the Canadas, and marched through their territories, 
not to defend the people from the aggressions of foreign 
enemies, but to subject them to political slavery. 

Yet, when all these matters had passed before our eyes ; 
and when we had listened to the tales of wrongs and 
grievances which were related to us by all of the vast 
number of people who had come among us from the 
Canadas, and which we believed, because they were simi- 
lar to those tales we had heard from our forefathers, who 
had themselves been British Colonists ; and when we 
had been made to believe that the people of the Canadas 
were about to make a hearty struggle for liberty, we were 
14* 



162 LETTER TO LORD BROUGHAM. 

not even then prepared to embark in those movements, 
so unfortunate to us all, (for I too, my Lord, have been a 
prisoner in the hands of Her Majesty's Government for 
man}' dreary months,) until public meetings of our citi- 
zens had been held along the whole borders from Maine 
to Michigan ; at which meetings clergymen, members of 
congress and of the state legislatures, judges, justices of 
the peace, lawyers, physicians, and others of the most re- 
spectable of our citizens presided as officers ; and the 
most eloquent of our countrymen were speakers — who in 
their addresses, declared the struggle of the Canadians, 
"not alone the cause of the people of tho^e Provinces — 
but ours — of free government — and of all mankind. 
The cause of true religion, and of .God I" and they bade 
us " go to the aid of the Canadians ; to go by ones — by 
twos — and by threes'';" and they proclaimed it ^^ to he a 
cause glorious, even to fail iri ;" while our people put 
their hands to- their pockets to furnish the means; and 
having given arms' to numbers of the young and chival- 
rous of our country, them they sent oft^ to fight in the 
cause of political freedom. Therefore, if we were guilty 
of wrong, it was equally the wrong of those who sent us ; 
and if we have offended, it was no more our offence than 
that of the whole American people. 

But as it must be known to your Lordship, in this the 
people of the United States did no more than has been 
done by British subjects in almost every country on 
the face of the earth, where there has been presented the 
same state of political affairs which existed in the Cana- 
das in 1837 and 1838. 

All that we had proposed in aid of the people of the 
Canadas we had seen given by British subjects in aid of 
the people of all of the revolted colonies of Spain in 
South America : By British subjects in aid of the people 
of a revolted colony of Portugal, on the same continent. 

All that we had offered in support of the revolutiona- 
ry movements of Canada, we had seen given by the Bri- 
tish subjects in aid of a revolution in Spain : By British 
subjects in aid of a revolution in Portugal; and by Bri- 
tish subjects in aid of a revolution in Circassia. 

All that we had aimed to effect in the Canadas, we 



LETTER TO LORD BROUGHAM. 163 

had seen effected by British subjects in carrying out a re- 
volution in Greece : By British subjects in carrying out a 
revolution in Portugal. 

Then, if we may put confidence in the public accpunts 
of the day, as often as any of the British subjects who 
have been engaged in revolutionarj^ movements of other 
countries have been captured b-y their adversaries, Her 
Majesty's Government have sent commissioners to inter- 
cede for them and to prevent their being subjected to 
punishment ; and in many instances their liberation has 
been demanded in the name of the power of the British 
nation. 

In view of all these matters, my Lord, it is an opinion 
adopted by a large majority of the people of the United 
States, that Her Majesty's Government have no justifica- 
tion for the treatment bestowed upon our fellow citizens 
now prisoners in their hands. Indeed, my Lord, we must 
regard the course of the French people adopted on a re- 
cent occasion as a rebuke to Her Majesty's government for 
their conduct in this matter ; inasmuch, as that when 
within a very recent date, an expedition having been fit- 
ted out in London and embarked on board a British ves- 
sel, sailed direct from thence for the coast of France, 
where the expedition was landed and an attempt made 
by it to effect a political revolution in that country; 
and when the expedition had failed entirely, and every 
person belonging to it was either killed or taken prisoner ; 
yet not an individual who fell into the hands of the 
French Government, of that expedition, as prisoners, was 
condemned as a felon ; but each and every one of them 
taken, has been detained as political prisoners. 

It is difficult, my Lord, to suppose a government like 
that of Her Majesty's, could entertain vindictive feelings 
towards any individuals whom they have in custody as 
prisoners ; and the more especially towards those who 
are known to possess no political influence whatever ; and 
who in the matters in which they have been implicated, 
were but subordinates and of the rank and file. Then, 
can it be for the honor, or in any manner accrue to the 
benefit of the British nation longer to detain in the condi- 
tion of common felons the American citizens whom Her 



164 LETTER TO LORD BROUGHAM. 

Majesty's Government have sent to Van Diemans Land ? 
If it can, I believe the world will be unable to discover 
wherein. 

All civil commotion in the Canadas is declared to be at 
an end ; and it has been proclaimed by the Governor 
General of those Provinces, that he no longer fears a re- 
newal of the frontier disturbances ; and the military pow- 
er of Her Majesty's Government is now so well establish- 
ed in the Canadas, that it is not remaining with the 
things possible that the people of those Provinces should 
be found able, however much inclined, to make the first 
step towards a change of their political institutions by an 
appeal to arms, unless assisted by the Government of 
some powerful nation, having the resources necessary to 
organize and sustain large naval and military forces. 

For a long series of years previous to the breaking out 
of the civil commotions in the Canadas in 1837, there had 
subsisted the most amicable relations between the citizens 
of the United States and the people of those Provinces ; 
and it is now not less for the interest of the people of 
those Provinces, than that of the citizens of the United 
States, that all causes for recollecting the part each may 
have taken in those civil commotions, should be effaced. 

It might be asked, my Lord, v/hy it is left for private 
citizens to interfere for the release of our countrymen, 
now prisoners in the hands of the British Government ; 
and why their liberation has not been asked for by the 
Government of the United States ? But, to this sup- 
posed inquiry, I answer, that while our institutions and 
laws leave the individual citizen free to go from the 
country and unite himself in arms with any people to 
whom his likes or interests may direct him ; and with them 
carry on war against any other nation or people, they per- 
emptorily prohibit those administering our Government 
from recognizing such person as a citizen of the Republic, 
or of interfering in their behalf, whenever they may be- 
come prisoners in the hands of their adversaries. Con- 
sequently, no application for the liberation of my unfor- 
tunate countrymen can be expected to come from the 
Government of the United States. It is only by private 
citizens of this country, united with the benevolent of 



LETTER TO LORD BROUGHAM. 165 

Great Britain, that any application may be made in their 
behalf. 

I would also suggest to your Lordship, that the further 
detention of my unfortunate countrymen not only seems 
to work a hardship and a wrong to the individuals, but 
from the existence of their extensive family connexions, 
which are scattered along our whole frontier; and the 
deep sympathy which is felt for them by a great majority 
of the American people, I believe I am correct when 
I advise your Lordship that it is likely to engender a last- 
ing and uncompromising hatred between the people on 
the different sides of the frontier lines ; and to create with 
the people within our borders, a spirit of retaliation, 
which in case of a war between the United States and 
Great Britain, would be the foundation for unnecessary 
bloodshed and the exercise of the severest cruelties ; and 
for a return to the usages of the savage people of a dark- 
er age, under which hut few prisoners are taken — and no 
courtesy or kindness afforded to any. Their sufferings 
may, likewise, be made the capital, to be used by some 
reckless aspirant for fame, for another volunteer military 
movement in behalf of the liberties of the Canadas, though 
such could only bring injury to the Government of both 
countries, and misery and distress upon the people., 
Therefore, for the avoiding of these matters, which all 
must desire — and in behalf of the American citizens now 
prisoners in the hands of Her Majesty's Government, I 
request that your Lordship will be pleased to take an early 
occasion to bring their case again to the consideration of 
Her Majesty's Ministry, so that they may be liberated 
and permitted to return to their country and friends : or 
that they may be, at least, relieved from their present in- 
tolerable condition. 

With the highest consideration for your Lordship, 
I am, my Lord, 

Your Lordship's obedient and humble servant. 

TH : J. SUTHERLAND. 

New-York, January 1, 184L 



CAPTIVE PATRIOTS, 

NOW IMPRISONED AT VAN DIEMANS LAND. 

A LIST OF THE NAMES OF THE AMERICAN CITIZENS TAKEN AT 
WINDMILL POINT, NEAR PRESCOT, IN UPPER CANADA. 



From Jefferson County, N. Y. 



RESIDENCE. 



John Bradley, Watertown, 
Orlin Blodget, Philadelphia, 
Chauncey Bvigby, Lyme, 
Geo. T. Brown, Le Ray, 
Pvichard Bell, Antwerp, 

Nelson Colton, Orleans, 
Lysander Curtis, Lyme, 
Robert G. Collins, " 
John Cronkhite, Le Ray, 
Moses A. Dutcher, Brownville, 
Luther Darby, Watertown, 
Aaron Dresser, Alexandria, 
Leonard Delano, Watertown, 
Elon Fellows, Dexter, 

Emanuel Garrison, Brownville, 
John Gilman, 



William Gates, 

David Allen, 
John Berry, 
Joseph Lee, 



RESIDENCE. 

Watertown, 
Alexandria, 



Lyme, 
From Oswego County, N. Y. 



Daniel D. Hustis, 
Garret Hicks, 
David House, " 

James Inglish, Adams, 

Andrew Deeper, Antwerp, 

Joseph Lafort, Lyme, 

Daniel Liscome, Charmont, 

Andrew Moore, Adams, 

Foster Martin, Antwerp, 

Ira Polly, Lyme, 

William Reynolds, Orleans, 
Orin W. Smith, " 

John G. Swanburgh, Alexandria, 

Henry Shew, Philadelphia, 

Thomas Stockton, Rutland, 

Riley Whitney, Lyme. 



Volney, 

Oswego, 

Palermo, 



Jehiel H. Martin, 
Alanson Owens, 
Samuel Washburn, 



Oswego, 
Palermo, 
Oswego. 



From St. Lawrence Co. N. Y. 



John Holmes, 
John Monisette 
John Thomas, 



Madrid, 



1 Edward A. Wilson, Ogdensburgh, 



Salina, 



OgdensburghJJacob Herald 
Madrid, ' 

From Onondaga County, N. Y. 
Calvin Matthews, 
Chauncey Matthews 
Jacob Paddock, 
Hiram Sharpe, 
Nathan Whiting, 
Jerry C. Griggs, 

From Lewis Co. N. Y. 
Stephen S. Wright, Denmark. 
From Cayuga Co. N. Y. 
Thomas Baker, Hannibal, [Patrick White, Auburn. 

Benj. Woodbury, Auburn, | 

From Herkimer Co. N. Y. I From Oneida Co. N. Y. 
William Goodrich, Norway. [James Pierce, Marshall. 



Philip Algire, 
Hugh Calhoun, 
Michael Fryer, 
G. A. Goodrich, 
Nelson G. Griggs, 
Hiram Loop, 

Fro7n Erie Co. N. Y. 
Asa M. Richardson, Buffalo. 



Clay, 
Salina, 

Liverpool, 



Lysander, 
Salina, 



Liverpool, 
Salina. 



CAPTIVE PATRIOTS. 



167 



From Warren Co. N. Y. | Residence not known. 

Solomoa Reynolds, Queensbury.) Joseph Stewart. 

A LIST OF THE NAMES OF THE AMERICAN CITIZENS TAKEN AT 
OR NEAR WINDSOR, IN UPPER CANADA. 
From Cuyahoga Co. Ohio. 
James P. Williams, Cleveland, James Williams, Cleveland, 
Samuel Snow, Stronsville, Charles Reed, " 

Simeon Goodrich, Cleveland, Robert Whitney, " 

Robert Marsh, " Oliver Crandall, " 

David Day, " John L. Guttridge, " 

From Wood Co. Ohio. 
Mitchell Monroe, Toledo. 
From Lorain Co. Ohio. 
Allen B. Sweet, | John Sprague. 

William Nottage, | 

From Wayne Co. Michigan. 

Daniel Anthony, Detroit. 

From Washtenaw Co, Michigan. 



Hiram Barnham, 

John Simons, 
Joseph Horton, 



Ypsilanti, ] James D. Few, Ypsilanti. 

From Erie Co. N. Y. 
Buffalo, lEzra Horton, Buffalo. 



From Madison Co. N. Y. 

Eleazur Stevens, Lebanon. 

From Niagara Co. N. Y. 

John W. Simmons, Lockport, | Truman Woodbury, Lockport. 

From Monroe Co. N. Y. 

John C. Williams, Rochester. 

Residence not known. 



John W. Brown, 
John B. Turrell, 
Horace Cooley, 
William Montague, 
Samuel Hilkey, 



Elijah Woodbury, 
James Achason, 
Joseph Stewart, 
John S. Maybee, 
Henry G. Barnum. 



LIST OF THE NAMES OF THE AMERICAN CITIZENS TAKEN AT 

SHORT HILLS, IN UPPER CANADA. 

From Chautauque Co. N. Y. 

Linus Wilson Miller. 

Residence not known. 



Erastus Warner, 
Samuel Chandler, 
Benjamin Waite, 
Geo. B. Cooley, 

Od" Of the American citizens captured in Lower Canada, no list 
of names has been obtained. 



Norman Mallory, 

John Vernon, 

James Van Waggoner. 



CONTENTS. 

Page. 

Advertisement, 3 

Dedication, *,....» 5 

Letter to the British Queen, 9 

Letter to Lord Durham, 21 

Letter to Sir George Arthur, 75 

Letter to Lord Glenelg, 79 

Appendix. 

Members of the Court, 98 

Preliminary Proceedings, 99 

Report of the Testimony, 104 

Act of the 12th of Jan 147 

Militia Laws, 149 

Affidavits, 152 

Letter to Lord Durham, 159 

Captive Patriots, 166 



^m^ 

*??■ 



